Drafting Your Will in New Jersey

by Jeff Franco J.D./M.A./M.B.A.

The first requirement in New Jersey for making a legally valid will is that you must be of sound mind and at least 18 years of age at the time of drafting the document. A number of state laws govern the contents and form of the will document. In the event your will doesn't comply with even one of these statutory requirements, you run the risk that a New Jersey court may rule your will cannot be enforced.

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Written Requirement

The most basic and fundamental requirement to drafting a legally enforceable will in New Jersey is that it be in writing and bear your original signature. The "writing" requirement is satisfied if you type the entire document, but New Jersey will also enforce a handwritten document, known as a holographic will, if all material parts of the will are drafted in your handwriting and the document includes your original signature. New Jersey probate courts may validate your will if it’s missing your original signature, but only if you were physically unable to sign the document, directed another individual to sign it on your behalf and in your presence, and the document isn't handwritten. Regardless of who signs the will, you should also include an attestation clause above the signature that acknowledges the document as your last will.

Witness Signatures

When drafting your will, you’ll need to obtain the signatures of two people who are present and witness your signing of the document. If you fail to have two witnesses present, you can obtain the witnesses’ signatures at a later time if you inform the witness that the document is your last will and the signature is your own. The law does not place restrictions on who can serve as a witness, provided that person is mentally competent and capable of testifying about the validity of the will if necessary. You can also make a will "self-proving" – meaning the court will not require witnesses to testify – by attaching the document "Acknowledgement and Affidavit Relating to Execution" and you have all documents notarized. New Jersey Code §3B:3-4 provides standard language you can use for drafting both documents.

Executor and Beneficiaries

Prior to drafting the will, you'll need to determine who will be the executor of your estate and its beneficiaries, or heirs. When choosing an executor, consider someone who is trustworthy, competent and reliable because the person you choose will be responsible for managing your estate and overseeing distributions to beneficiaries. When drafting the will, it’s a good idea to include the full legal names of all beneficiaries and executor to eliminate confusion. It is also important to identify each piece of property with great specificity. For example, if you own multiple homes and want to leave each one to a different beneficiary, include the exact address of each home in the will and clearly spell out the heir who is to receive it instead of making vague references to “my home” or “my vacation home.” Finally, your will should include the names of alternates who can take the place of beneficiaries and executor in the event they predecease you.

Future Property

New Jersey courts will always follow the instructions you provide in a legally enforceable will, but only as to the property you specifically identify in the document, so it is crucial you include a residuary clause. This clause provides instructions on how to dispose of property you may acquire after executing the will. Otherwise, state law, rather than your wishes, will govern the disposition of that property. Since the consequences of errors and omissions in a will in New Jersey can be severe, you may want to consult an attorney or an online legal documentation service for assistance in drafting your will.