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Articles Tagged with New Jersey Estate Planning Attorneys

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supreme-administrative-court-3565618_960_720-300x200A holographic will is a will that is handwritten, signed and dated by the testator (the person whose will it is).  Under New Jersey estate planning Law, holographic wills can be probated and will serve to ensure that the Testator’s assets are bequeathed according to the Testator’s wishes.  In fact, a holographic will is valid even in the absence of witnesses.   While a formal, written will with witnesses prepared by an experienced estate planning attorney is always preferable, a holographic will can be used in an emergency.

During the current health crisis, particularly for those who have tested positive for COVID-19 or those who are at particular risk, it may be better to have a holographic will than to have no will at all.  However, it is important to know the requirements as well as the risks and downsides to using such a handwritten will.   If at all possible, it is certainly better for everyone involved, from the testator to the executor and beneficiaries, for there to be a properly executed traditional will.

The crucial requirement under New Jersey wills and estate law,  for a handwritten will to be admitted to probate in New Jersey is that the will was written by hand, signed and dated by the decedent and that the signature and key provisions are clearly written by the same hand and that the handwriting is identifiable as that of the decedent.   To prove that in court usually requires testimony by a handwriting expert and/or witnesses who are familiar with the decedent’s handwriting.   The holographic will must be presented to the Superior Court by an order to show cause in order to be probated, even if all interested parties agree that the will is valid and represents the decedent’s wishes and intentions about their estate.

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Frequently, when you or a family member are first diagnosed with dementia, you still have the capatestament-1183175__340-300x200city and are legally “competent” to make your own estate planning decisions.  The four documents discussed here will assist a person with dementia and their loved ones as the disease progresses and they no longer have the mental capacity under the law to execute these documents and are no longer able to make decisions for themselves.   If a person has not already made these planning decisions and executed the necessary documents, they must act immediately while they still have the mental (and legal) capacity to do so.

In order to be legally capable to sign estate planning documents a person must have “testamentary capacity” – they must be able to understand the import and consequences of what they are signing.  They must understand the mechanisms being put in place and the who they are appointing to make decisions for them.  Even if a person only has periods of lucidity it does not mean they automatically lack the required mental capacity.   That can be complicated, as they need to review and execute the documents during a period of lucidity.  Sometimes meetings with their attorney will need to be rescheduled to accomplish this goal.

The most important documents for a person who has been diagnosed with dementia are the Durable Power of Attorney, the Living Will, the Health Care Proxy and the Last Will and Testament.

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