What consitutes a will?
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What consitutes a will?
My Uncle did not initially believe in wills. He would use PODs and co-ownership to determine the distribution of his assets. He recently typed up a letter assigning myself and a sibling as executors of his estate and a brief write up of how he wants his remaining assets distributed. This document was notarized prior to his passing. Will this document grant us authorities as executors of his estate or will his estate have to go thru probate by the state?
Asked on March 19, 2018 under Estate Planning, New Jersey
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 3 years ago | Contributor
A will in New Jersey should be a typed document which states it is a will, which by its terms disposes of the testator's (person making the will) assets, and which was signed by the testator in the presence of two (2) witnesses, both of whom then signed in each other's presence. It should be notarized as well, to make it "self proving": if it's notarized the signatures on it speak for themselves, but if not notarized, during probate, the witnesses would have to confirm to the court that those were their signatures.
So notarization is useful, but is not enough; if your uncle's signing of the alleged will was not witnessed by two people who then each signed it in front of each other, it is not a valid will and is not enforceable. Only being notarized, not witnessed, is not sufficient. In that case, your uncle's estate (his assets) will pass according to the rules for "intestate succession," or who gets what when there is no valid will, which--to oversimplify--is first to spouse and children; then to parents; then to siblings; then to more distant relatives.
If there is a proper and valid will, it does go through probate: probate is the process of the court validating the will and issuing the necessary authority over your uncle's belongings to the named executor.
Anything POD or owned jointly in the correct way (like real estate owned as joint tenants with right of survivorship; a joint bank account) becomes the property of the designated person (e.g. the joint owner; the POD beneficiary) without becomeing part of the estate, without going through probate, and is not subject to either a will or the rules for intestate succession.
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