Why You Want to Avoid Intestacy Laws – Part 1

                In the past few months we have had calls regarding how to distribute assets of a person who dies without a will.  This is what is known as dying “intestate”, without leaving a will or set of instructions as to how you want your assets distributed.   Keep in mind that some assets may have payable upon death designations or be owned jointly with right of survivorship.  I have written in previous blog posts about those assets being non-probate or not passing by way of the will so that the failure to leave a validly executed will would not pose a problem with these assets since their distribution is already determined.

                New Jersey’s intestacy statute was last amended 10 years ago.  As I always explain, this law is the State’s determination of how most people would want to distribute their assets to their loved ones, however, that may or may not be in line with what you would actually want.  That’s why a will is so important because it is your opportunity to distribute your estate exactly the way you wish to and not according to someone else’s (ie. the State’s) plan.

                In what I would call the easy cases the law is straight forward.  In the case where there is a surviving spouse with no children and no surviving parents or a surviving spouse of a marriage with children from that marriage and no other children for either spouse from any other relationship, everything passes to the surviving spouse.

                Where the results get interesting and where we see many unhappy family members is when there are parents of the decedent still alive or children of either spouse from other relationships.  New Jersey’s intestacy law attempts to devise an equitable distribution of the estate but problems can and do arise.  It’s always better not to leave it to these laws to distribute your assets.  Next week I’ll show you why.

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