Real Estate Attorney in Morris County NJ
Real Estate Closings  


Q. Why should I have a Last Will and Testament?

A. A Will enables you to:

    • choose who will get your property after your death;
    • choose how your property will be divided among your various beneficiaries;
    • give specific items of property to specific people;
    • appoint someone you trust to administer your estate; and
    • appoint a guardian for your minor children.

If you die without a Will, your property will be distributed by a court-appointed administrator according to statutory plans for "intestate succession." Your property will be divided among your surviving spouse, children, and possibly other relatives in whatever manner the law of your jurisdiction specifies. You will not have a chance to give property to non-relatives or to exclude relatives. Additionally, if you have no relatives, your property will go to the state rather than to a friend or charity of your choice.

Q. Who can make a Will?

A. In most jurisdictions you must be at least 18 years old to make a Will, however exceptions may be made for younger people if they are in the military, if they are married or if they have been legally emancipated. In addition you must be of "sound mind" to make a Will. Being of sound mind means:

  • You understand you are making a Will and you know what a Will is;
  • You understand your relationship to those mentioned in your Will; and
  • You understand what types of property you own, how much of that property you own and how you intend to distribute that property.

Q. When should I change my Will?

A. It is up to you to decide when to change your Will. You should review your Will from time to time to ensure that it still meets your needs and that your property will be distributed according to your wishes. It is especially important to review your Will on the following events:

  • You get married or divorced (a change in marital status may void your Will);
  • You are unmarried, but have a new partner;
  • The amount of money and property you own significantly changes;
  • You move to another state (not all states recognize out-of-state Wills as valid);
  • Your executor or a significant beneficiary in your Will dies;
  • There is a birth or adoption of a child in your family;
  • You change your mind about the provisions in your Will.

Q. I'm getting older. What documents should I have in place?

A. If you are getting older or if you have dependants, there are three documents you should prepare to help your loved ones manage your affairs.

  1. Health Care Directive: Your Health Care Directive (also called Living Will or Personal Directive or Advance Decision) is used to appoint someone to make health care and personal care decisions for you (of a non-financial nature) and describes any medical treatment preferences you may have in the event you are no longer able to communicate or are incapable of giving consent.
  2. Power of Attorney: Your Power of Attorney grants authority over your financial decision making to someone you trust in case you become unable to communicate or incapable of giving consent. A Power of Attorney may also be used to grant full or limited powers over your financial affairs when you will be travelling or otherwise unavailable.
  3. Last Will: Your Last Will describes how to distribute your estate after you die.

Q. Do I need a Will if I have a Financial Power of Attorney?

A. Yes: a power of attorney provides your chosen agent with the power and authority to deal with your property and make financial decisions for you only while you are alive. A power of attorney automatically ends on your death. Consequently, you need a Will to specify how you want your estate distributed on your death.

Q. What is the difference between a Will and a Health Power of Attorney?

A. A Will is used to distribute your property after your death. A Health Care Directive allows you to specify, in writing, your health care preferences for the time when you no longer have capacity to provide consent. A Will cannot be used to specify what t for the time when you no longer have capacity to provide consent. A Will cannot be used to specify what type of medical treatment you want.

Q. What is an executor?

A. An executor is the person who will be carrying out the terms of the testator’s will and administering the testator’s estate. An executor is sometimes referred to as a personal representative.

Q. What does an executor do?

A. An executor or personal representative is responsible for collecting the assets of the estate, paying any debts of the estate, paying state and federal taxes, and distributing the assets of the estate in accordance with the directions of the Will.

Q. Whom should I select to be my executor?

A. Administering the estate can be complex, time-consuming and stressful. Ensure you select someone you trust, who will be able to handle your financial matters prudently. Your executor does not need to have any legal expertise. An executor can always hire a lawyer should the need arise. Many people select their spouse or an adult child to be their executor. Also, people often choose an individual who will be receiving a substantial amount of property to be their executor. In this way, the executor will want to ensure that the property is distributed properly.

Q. Can I choose anybody to act as my executor?

A. Usually you can choose anyone to act as executor except a minor or a convicted felon. Additionally, some jurisdictions place restrictions on non-resident executors (for example, some states specify that all non-resident executors must be related to you).

Q. Can my executor be a beneficiary in my Will?

A. Yes, your executor can be a beneficiary in your Will.

Q. Can a husband and wife make a Joint Will?

A. A Joint Will is a single Will that covers two people. When one person dies the Joint Will leaves everything to the surviving person. Joint Wills also state what will happen to any property should both people die.

The major problem with Joint Wills is that the surviving person cannot change the Will after the first person dies. Should life circumstances change - for example the surviving person wishes to remarry after the first person's death - the surviving person is stuck with whatever the Joint Will provided. LawDepot does not provide Joint Wills however, LawDepot does allow two people to make "Mirror" Wills.

Q. Can a husband and wife make Mirror Wills?

A. Mirror wills are used to allow two people to create almost identical wills which leave everything to each other. A husband and wife (or any other couple) can make "Mirror" Wills by each writing a Will that leaves everything to the remaining spouse. Often, there is a clause that provides that if the husband and wife die at the same time or within thirty days of each other, then everything goes to the couples' children or if there are no children, to a named beneficiary.

The important thing to remember is that you can only use a Will to give away what you own, and not what your spouse owns. Additionally, jointly owned property where there is a right of survivorship cannot be disposed of in your Will because the surviving owner automatically becomes the sole owner of the property when one of the joint owners dies. This is true whether it is a house, a bank account or any other property that is jointly owned.

If you want to make Mirror Wills, each partner must create a Will. Use the "Specific Gifts" section to give gifts to named beneficiaries and then the "Distribution of Residue" section to give everything else you own to your partner. If you do not want to give specific gifts to anyone, select "None" for Specific Gifts and leave the residue of your estate to the other partner.

Q. What is a guardian?

A. A guardian is a person the testator appoints to look after the testator’s minor children when the testator dies.

Q. Do I have to appoint a guardian for minor children in my will?

A. You do not have to appoint a guardian for your minor children however, if you do not, the courts will decide who will look after your children.

Q. What should I consider when appointing a guardian?

A. When appointing a guardian you may want to consider the following questions:

  • Will my proposed guardian be old enough to look after my children? (Your proposed guardian must be an adult.)
  • Does my proposed guardian have experience raising children?
  • Is my proposed guardian concerned about my child’s welfare?
  • Is my proposed guardian able to care for my child emotionally, physically and financially?
  • Does the proposed guardian have the time to take care of my children?
  • Does my child like and feel comfortable around the proposed guardian?
  • Where does my proposed guardian reside? (It may be difficult or upsetting for your child to move right after your death.)

Q. Can all my property be given away in a Will?

A. Not all property can be given away in a Will. Wills typically do not cover the following:

  • pension plan assets
  • retirement plan assets
  • 401(k) plan assets
  • life insurance
  • annuities
  • property held in a trust

These items are generally passed to the individuals you name as beneficiaries in each plan. However, if you have named your estate as a beneficiary then your Will determines who will receive these items. Naming your estate as a beneficiary may create negative tax implications for your other beneficiaries.

Q. Can I leave the proceeds of a life insurance policy to someone by Will?

A. If the proceeds of a life insurance policy are payable to someone (i.e. if you have already designated a beneficiary in the life insurance policy) your Will cannot be used to leave the money to someone else.

However, if your life insurance policy directs the proceeds to be paid into your estate, then the proceeds simply form part of your estate. You can use your Will to give specific sums of money to family members or friends, or it can form part of the residue of your estate.

The residue of your estate is all of your property that is not given away as a specific gift. So for example, if you own a house, a savings account, a car and household property, and you gift the car to a specific beneficiary in your Will but do not mention the other property, then the other property forms the residue of your estate.

Q. Can I change the beneficiary of my Life Insurance or Retirement Savings Plan using my Last Will?

A. You may have started a life insurance policy many years ago and now that you are creating a Last Will you realize you want to designate a different beneficiary. Do not attempt to change the beneficiary to a life insurance policy or retirement savings plan by making a designation in your Last Will. This will almost certainly result in legal action between the beneficiary you originally named and the new beneficiary you named in your Last Will.

The correct way to change the beneficiary to your life insurance policy or retirement savings plan is to go to the bank or insurance company and fill out the proper beneficiary change request form.

Q. Can I disinherit somebody in my Will?

A. If you need to disinherit someone you should do so by naming and disinheriting that person specifically, otherwise a court may assume that you simply made a mistake and may re-interpret the Will including the missing person. LawDepot's Will contains the clause "If I have omitted to leave property in this Will to one or more of my heirs as named above the failure to do so is intentional." Notwithstanding this clause, it is safer, clearer and less prone to court challenge if you specifically name any heirs that you wish to disinherit.

Most jurisdictions have enacted laws which protect spouses and children from disinheritance. If you have disinherited your spouse or children in your Will, it may not survive a challenge in court. You should get counsel from a local lawyer to determine whether such laws will apply to your disinheritance provisions.

Q. What is a Specific Gift?

A specific gift is just what it sounds like. It is a gift of a specific item of property or sum of money to a named beneficiary. For example:

  • I give my diamond engagement ring to my daughter, Sally Jones.
  • I give $5000.00 to my friend, James Smith.

Everything that is not given away as a specific gift forms the residue of the estate.

Q. Can I make a gift to a charitable organization?

A. Yes, you can make a gift to a charitable organization. To make a specific gift to a charity ensure that you provide the full name of the charity and for “Beneficiary’s Gender” select “Corporate”. Under “Beneficiary Address” provide the full address of the charity’s main office. Also, it is a good idea to provide an alternative beneficiary to a charitable gift in case the charity folds or no longer exists at the time of your death.

Q. Can I name a pet as a beneficiary?

A. You should not name your pets as beneficiaries. Instead you should provide instructions to your executor to find suitable care for your pets and leave money for the pets’ upkeep.

Q. How can I ensure my pet is fed and watered in case of my sudden illness or death?

A. Where possible, you should discuss your concerns with trusted friends and family. Ideally, you should leave spare house keys with trusted acquaintances. You should also consider carrying an information card in your wallet to alert emergency medical personnel. This card should contain contact information for pet caregivers as well as any important medical information pertaining to your pets.

Q. Can I put instructions for my funeral in my Will?

A. You can include your wishes for your funeral in your Will. However, your expressed wishes are not binding, and there is a good possibility no one will look at your Will until after your funeral. If you do put directions for your funeral in your Will, make sure your executor and family members who will be arranging your funeral know that you have done so. You can use the Additional Clauses section to specify your funeral instructions.



The Law Office Of Martin D. Eagan
52 Maple Avenue
Morristown, NJ 07960
Tel.: (973) 898-7300 | Fax: (973) 734-1903