FOL. VIEstate Planning
N.J.S.A. 3B:3-2 (Execution of Wills)
Estate Planning
Wills · revocable and special-needs trusts · advance directives · estate administration and litigation.
a. ... a will shall 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 by 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 acknowledgment of that signature or acknowledgment of the will. — N.J.S.A. 3B:3-2(a). Holographic wills permitted under subsection (b); writings intended as wills may be probated under N.J.S.A. 3B:3-3 (probate of writings intended as wills).
Statute text reproduced for educational reference. Verify against the official New Jersey Legislature publication before relying on any citation in legal proceedings.
Surrogate Court · Probate Part · Chancery Division — General Equity
Avery & Avery, Esqs. is a premier Bergen County estate planning practice drafting wills, powers of attorney, advance directives, and revocable trusts; administering estates through the Bergen County Surrogate’s Court; and counseling on NJ Inheritance Tax exposure and federal estate-tax planning. Robert W. Avery — who carried the Bergen County Republican Association’s nomination for Bergen County Surrogate in 2016 — has represented executors, beneficiaries, and contesting parties in the Bergen Surrogate’s office for decades.
For a free first consultation on a will, a power of attorney, an estate administration, or a contested probate matter, call (201) 943-2445.
What We Draft
Last Will and Testament — N.J.S.A. 3B:3-2
NJ recognizes both traditional witnessed wills and, in narrow circumstances, holographic wills (handwritten). A valid traditional NJ will requires:
- The testator’s signature
- Two witnesses, each present at the same time
- Witness signatures within a reasonable time
Common drafting decisions: residuary clause, specific bequests, guardianship designation for minor children, executor and successor executor, probate-avoidance vehicles. Read our blog post on when to hire a will and testament attorney →
Power of Attorney — N.J.S.A. 46:2B-8.1
A durable power of attorney allows an agent to make financial decisions on the principal’s behalf, including after the principal’s incapacity. Optional springing language activates the agency only on disability. NJ has a statutory short-form POA but most matters benefit from custom drafting.
Advance Directive (Living Will) — N.J.S.A. 26:2H-53 et seq.
An advance directive expresses the principal’s preferences regarding life-sustaining treatment in cases of irreversible incapacity, and designates a healthcare proxy to make decisions consistent with those preferences. NJ’s Advance Directives for Health Care Act provides the governing framework.
Revocable Living Trust
A revocable living trust holds assets during the grantor’s lifetime and distributes them at death without probate. Suitable for out-of-state real-property holdings, privacy concerns, and incapacity planning. Less commonly used in NJ than in other states because NJ probate is relatively efficient through the Surrogate’s office.
Standard Estate Plan Package
A typical Avery & Avery estate plan package combines:
- Will (or mirror wills for spouses)
- Durable power of attorney
- Advance directive / living will
- HIPAA authorization
- Beneficiary-designation review (retirement accounts, life insurance — these pass outside the will)
Estate Administration — Bergen County Surrogate’s Court
NJ probate is administered through the County Surrogate’s Court. For Bergen County: the Bergen County Surrogate’s Court at the Bergen County Justice Center, 10 Main Street, Room 211, Hackensack, NJ 07601 ((201) 336-6700). Administration sequence:
- Probate — file the will at the Surrogate’s office; receive Letters Testamentary
- Marshal assets — inventory accounts, real property, personal property, business interests
- Notice to creditors — formal notice; statutory creditor period
- Pay claims and taxes — including NJ Inheritance Tax where applicable; federal estate tax at threshold
- Account and distribute — file refunding bonds and releases; close the estate
For intestate estates (no will), administration runs through N.J.S.A. 3B:5-3 et seq. intestate-share statutes. Spouse and descendants typically inherit; the precise share depends on family structure.
NJ Inheritance Tax — N.J.S.A. 54:34-1 et seq.
NJ is one of a small number of states still imposing an inheritance tax (separate from the now-repealed NJ estate tax). The tax is applied based on the beneficiary’s relationship to the decedent, not on the size of the estate alone:
| Class | Beneficiaries | Treatment |
|---|---|---|
| Class A | Spouse, civil-union partner, child, grandchild, parent, grandparent | Exempt |
| Class C | Sibling, son-in-law, daughter-in-law | First $25,000 exempt; 11-16% on excess |
| Class D | Anyone else (including unrelated friends, more-distant relatives) | 15-16% on entire bequest |
| Class E | Charities, certain religious / educational entities | Exempt |
(Class B was eliminated long ago.)
Read our blog post on NJ Inheritance Tax →
The federal estate tax threshold is $13.61M for 2024 (subject to sunset reductions in 2026 absent Congressional action). Most NJ estates are below threshold — but high-net-worth Bergen and Hudson estates may need both NJ Inheritance Tax planning (for non-Class-A beneficiaries) and federal estate-tax planning.
Contested Estates — Will Contests and Litigation
We litigate:
- Will contests alleging undue influence, lack of capacity, or improper execution
- Estate accounting challenges by beneficiaries
- Executor / fiduciary breach claims
- Construction proceedings to interpret ambiguous will language
- Trust modifications and reformations
Contested estate work is heard in Superior Court — Chancery Division — Probate Part. Robert W. Avery’s significant trial practice in estate matters (per his published legacy bio) anchors this side of the work.
Where We Practice
- Bergen County Surrogate’s Court — Hackensack. Bergen County estate planning →
- Hudson County Surrogate’s Court — Jersey City
- Essex / Passaic / Morris / Sussex Surrogates — full coverage
Schedule a Free Consultation
For a free first consultation on a will, POA, advance directive, or estate administration, call (201) 943-2445 or submit through the form. For our estate planning fees, see the fees page — most documents run on flat fees.
Frequently asked questions
General educational answers. Every matter has facts that change the analysis — for advice on your situation, call the firm.
Do I need a will if I do not have substantial assets?
Yes. Without a will, intestacy law (N.J.S.A. 3B:5-1 et seq.) controls who inherits — and the result often surprises clients. A will also names guardians for minor children, names an executor of your choosing, and can avoid the increased cost and procedural delay of an intestate administration.
What is the difference between a will and a revocable living trust?
A will takes effect at death and goes through Surrogate-Court probate (typically routine in New Jersey). A revocable trust is a living legal entity that holds title during your lifetime and distributes outside probate at death. Trusts add lifetime cost and administrative complexity, but offer privacy, planned incapacity management, and out-of-state real-estate avoidance.
What is a Power of Attorney and why do I need one?
A Power of Attorney (N.J.S.A. 46:2B-8.1 et seq.) authorizes another person to act on your behalf in financial matters. A "durable" POA survives your incapacity. Without one, family members must petition the Chancery Division for a guardianship, which is slower, more expensive, and creates a public record. A financial Power of Attorney does not authorize medical decision-making — for that you also need an Advance Directive / Healthcare Proxy under the New Jersey Advance Directives for Health Care Act (N.J.S.A. 26:2H-53 et seq.).
What is the New Jersey estate tax / inheritance tax?
New Jersey eliminated its state estate tax effective January 1, 2018, but retains the New Jersey Inheritance Tax (N.J.S.A. 54:34-1 et seq.) on transfers to non-Class A beneficiaries (i.e., not spouse, child, grandchild, parent, or stepchild). Federal estate tax applies above the federal exemption, which under the One Big Beautiful Bill Act is $15 million per individual for 2026 (indexed annually). High-value estates and gifts above $19,000 per recipient may still trigger reporting; we recommend reviewing your plan as exemptions, indexing, and family-circumstance changes accumulate.
Can a will be challenged in New Jersey?
Yes. Common contest grounds include lack of testamentary capacity, undue influence, duress, fraud, and improper execution. Contests are filed in the Probate Part of the Chancery Division (R. 4:80-7). The proponent of a properly-executed will receives a presumption of validity; contestants bear the burden of rebutting it by clear and convincing evidence.