Amended Probate Laws

Title:
Amended Probate Laws
Publication:
From the June 2005, <I>Riker Danzig Tax and Trusts & Estates UPDATE</i>.
Practice:

The New Jersey probate laws were revised effective as of March 1, 2005. Among the more significant changes was a substantial reworking of the intestacy provisions, which govern the disposition of probate property at death if no valid Will can be probated (i.e., because it does not exist or cannot be found).

The new statute provides that spouse, children and other family members are the primary recipients of your property if you die without a Will. However, if none of those relatives are living, the last class of beneficiaries - before property possibly escheats (i.e., is forfeited to) the state of New Jersey - is "stepchildren" or their descendants. And the new statute defines a "stepchild" as the child of a surviving, deceased or former spouse.

Since there may well be situations in which an individual has no interest in benefiting a stepchild - particularly of a former spouse - care should be taken to have a valid Will in effect that can be located without excessive difficulty and that deals with all of your property. For instance, if your Will does not ultimately bequeath all of your estate, that would lead to a complete or partial intestacy with the result that your property could pass to unintended beneficiaries (like stepchildren).

We are hopeful that these recent changes to our probate laws will inspire you to do the following:

 

  1. If you do not yet have a Will, you should do a Will as soon as reasonably possible. If you die without a Will, the state decides who gets your property, and those recipients may include the children of your former spouse.

     

  2. If you already have a Will, and your existing Will provides for your current stepchildren, you should have your attorney review it as soon as reasonably possible. Given the more liberal definition of "stepchildren" embraced by the new New Jersey intestacy laws, it is very likely that any bequest in your Will in favor of stepchildren will be honored even if you divorce their parent prior to your death. Please review your existing Will to see if you may be affected by this liberalized interpretation of "stepchildren."