Writing a will in New Jersey: legal requirements and tax basics

What makes a will valid in New Jersey

Under N.J.S.A. 3B:3-1, any person 18 or older who is of sound mind can make a will and name a guardian for minor children. N.J.S.A. 3B:3-2(a) then sets three basic requirements for a standard will.

Notarization is not required to make a will valid, but it is very useful, as explained below. New Jersey does not require that the will be filed anywhere while you are alive. Keeping the original somewhere safe and telling your executor where it is matters a lot, because the Surrogate generally wants the original.

Online templates and do-it-yourself kits can produce a valid New Jersey will if they are signed and witnessed correctly. The most common problems come from execution mistakes, such as missing witness signatures, and from vague language about who gets what, so careful drafting matters as much as the signing.

• It must be in writing
• It must be signed by you, or by someone else in your name, in your conscious presence and at your direction
• At least two people must sign as witnesses, each within a reasonable time after seeing you sign or hearing you acknowledge your signature or the will

Handwritten (holographic) wills

New Jersey recognizes handwritten wills. Under N.J.S.A. 3B:3-2(b), a document that does not meet the witness rules can still be valid as a will if the signature and the material portions are in your own handwriting, whether or not anyone witnessed it.

Handwritten wills are risky in practice. The court has to be convinced the document is in your handwriting and that you intended it to be your will, and unclear wording often leads to disputes among family members. They are usually best seen as a last resort.

Self-proving wills

N.J.S.A. 3B:3-4 allows a will to be made self-proving at the same time it is signed. You and both witnesses sign sworn statements before an officer authorized to take acknowledgments in New Jersey, confirming that you signed willingly, are at least 18, of sound mind, and not under undue influence.

The big benefit comes later. With a self-proving affidavit, the Surrogate can usually admit the will to probate without tracking down the witnesses to testify, which can save your family time and stress.

What happens if you die without a will

If you die without a will, New Jersey's intestacy laws decide who inherits. Under N.J.S.A. 3B:5-3, as updated in 2024 to include civil union and domestic partners, the general rules for a surviving spouse or partner look like this:

• If you leave no descendants and no parents, your spouse or partner inherits everything
• If all your descendants are also your spouse's, and your spouse has no other descendants, your spouse inherits everything
• If you have no descendants but a parent survives, your spouse takes the first 25% (at least $50,000 and no more than $200,000) plus three-fourths of the rest
• If you have children from another relationship, or your spouse does, your spouse takes the same first 25% plus half of the rest, and your descendants share the remainder

New Jersey inheritance tax and estate tax

New Jersey's estate tax no longer applies. According to the Division of Taxation, there is no New Jersey estate tax for people who die on or after January 1, 2018.

The inheritance tax still exists, and it depends on who receives the property. Class A beneficiaries, such as a surviving spouse, children, grandchildren and parents, pay no inheritance tax. Class E, which covers qualifying charities and certain public and religious institutions, is also exempt.

Class C beneficiaries (siblings and sons- or daughters-in-law) get the first $25,000 tax free, then pay rates from 11% to 16%. Class D, which includes nieces, nephews, friends and everyone else, pays 15% on the first $700,000 and 16% above that, with no exemption. If you plan to leave significant gifts to people outside Class A, this tax is worth discussing with a lawyer.

Choosing an executor and a guardian

Your will names an executor, the person who will gather your assets, pay your debts and taxes, and distribute what is left. Many people pick a spouse, an adult child or a trusted friend. It helps to choose someone organized, reasonably close by, and willing to do the job, and to name a backup in case your first choice cannot serve.

If you have minor children, your will is also where you name a guardian to raise them if both parents die. N.J.S.A. 3B:3-1 gives anyone who can make a will the power to appoint a testamentary guardian. Without that choice in writing, a court decides. Some parents name one person to raise the children and a different person or trustee to manage the money left for them.

Talk to the people you plan to name before you sign. It avoids surprises, and it gives them a chance to say no while you can still choose someone else.

Keeping your will up to date

A will is only useful if it reflects your life now. Common reasons to review it include marriage, divorce, a new child or grandchild, a move to or from New Jersey, buying property, or a change in who you want as executor or guardian.

Keep in mind that many assets do not pass under a will at all. Life insurance, retirement accounts and accounts with payable-on-death designations go to the named beneficiaries, and jointly owned property usually passes to the surviving owner. Checking those designations is part of any estate plan.

Changes should be made formally, either with a new will or with a codicil (an amendment) signed with the same formalities as the original. Crossing things out or writing notes on the original can create confusion about what you meant, and can lead to arguments among family members after you are gone.