Preparation of Will; Power of Attorney; Trust; and Living Will


As a general principle, New Jersey law requires only a very low degree of mental capacity to execute a will. The gauge of testamentary capacity is whether the testator can comprehend the property he is about to dispose of; the natural objects of his bounty; the meaning of the business in which he is engaged; the relation of each of these factors to the others, and the distribution that is made by the will. Testamentary capacity is tested at the time of execution of the will.

In any attack upon the validity of a will, there is a legal presumption that the testator was of sound mind and competent when he executed the will. This presumption can only be overcome by clear and convincing evidence. The burden of establishing lack of testamentary capacity falls upon the party who contests the will being offered for probate.

To comply with the necessary formalities of a valid will, a document must be:

1) in writing;

2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction; and

3) signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will or the testator’s acknowledgement of that signature or acknowledgement of the will.

A separate self-proving clause obviates the need to formally produce the witnesses to attest to the testator’s execution of the document.

Also, when a document lacks the formalities of a valid will, the writing may nevertheless be treated as if it had been executed in compliance with the formalities of a valid will if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute the decedent’s will.

A new will does not revoke a former will unless it purports to do so, or makes a disposition of the testator’s property so inconsistent with that made in the former will that the two wills cannot stand together.

Non-probate assets such as life insurance and pension proceeds pass by operation of contract and property law outside of the decedent’s estate. The designation of a life insurance beneficiary is considered a non-probate transfer.

The Elective Share Statute

Pursuant to the Elective Share Statute, the surviving spouse or domestic partner may elect to take his elective share in the augmented estate by filing a complaint in the Superior Court within 6 months after the appointment of a personal representative of the decedent’s estate. The court may, before the time for election has expired and upon good cause shown by the surviving spouse or domestic partner, extend the time for election upon notice to persons interested in the estate and to distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share.

Duties of an Executor

An executor is required to settle and distribute an estate as expeditiously and efficiently as is consistent with the best interests of the estate. Executors have the non-delegable duty to collect and preserve the estate assets, to supervise the administration of the estate and to exercise the care that an ordinary, prudent person would employ in like matters of his or her own. When and if an executor fails to act in the best interests of the estate, then he or she may be discharged.

An executor has a fiduciary duty to act in the best interests of all the beneficiaries under the will. The most fundamental duty owed by an executor to the beneficiaries is the duty of loyalty, and the executor is obligated to deal impartially with all beneficiaries. The executor of the estate must, at all times, act with the best interests of the estate in mind, and must attempt to ensure that the estate is distributed according to the decedent’s wishes. It is beyond peradventure that an executor cannot use his/her position to further his/her own personal interests.

The court may remove an executor from office when:

a. After due notice of an order or judgment of the court so directing, he neglects or refuses, within the time fixed by the court, to file an inventory, render an account or give security or additional security;

b. After due notice of any other order or judgment of the court made under its proper authority, he neglects or refuses to perform or obey the order or judgment within the time fixed by the court;

c. He has embezzled, wasted or misapplied any part of the estate committed to his custody, or has abused the trust and confidence reposed in him;

d. He has removed from the state or does not reside therein and neglects or refuses to proceed with the administration of the estate and perform the duties and trust devolving upon him;

e. He is of unsound mind or mentally incapacitated for the transaction of business; or

f. One of two or more fiduciaries has neglected or refused to perform his duties or to join with the other fiduciary or fiduciaries in the administration of the estate committed to their care whereby the proper administration and settlement of the estate is or may be hindered or prevented.

The power to remove a fiduciary appointed by a Last Will and Testament is to be exercised sparingly and cautiously. Executors may be removed in instances of fraud, breach of trust, or for acts which diminish or endanger the trust. The court most certainly has the authority to and should remove an executor who engages in self-dealing.

The executor has certain duties which include, but are not limited to, complying with the orders of the court and preserving the contents of the estate consistent with his/her fiduciary obligation. A party seeking removal of an executor must provide evidence of misconduct, or prove the estate or trust is at risk.

Removal, while an extraordinary remedy, is one that falls within the court’s discretion. If the executor acts in good faith with ordinary discretion and within the scope of his powers, his role as executor will ordinarily be preserved by the courts.


Advance Directive Forms and Frequently Asked Questions

Practitioner Orders for Life-Sustaining Treatment (POLST)

To discuss your specific situation, please call me, Paul G. Kostro, Esq., to schedule an appointment: 908-232-6500 or

The following Blog Posts may be of help to you: Will & Testament

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