Why do I need a last will and testament?

Most people believe that if they die without a Will, their estate passes to the state of New Jersey.  This is untrue.  The reality is, if you die without a Will, there is a series of statutes that determines who receives your estate.  Those statutes dictate that your closets relatives receive your estate.

For instance, if you die with a spouse, your spouse will receive your estate in most instances.  If you die without a spouse but with children, your children receive your estate.

Now, first of all, some people don’t want to leave their estate (or their entire estate) to their spouse, and some don’t want to leave their estate equally to their children.  Some people want to disinherit a child for one reason or another.  Others might want to create a trust for a child because the child is disabled or has problems with drugs or alcohol.

Secondly, what if a person dies without any close relatives?  Assume that Mr. Smith dies without a wife, children, or even siblings, who is going to receive his estate?

I have seen estates where individuals die without a Will and the closest relative the individual has are cousins.  The cousins might live in any part of the world, and there could be hundreds of cousins to the decedent.

Finding these relatives falls upon the administrator of the decedent’s estate.  An administrator is similar to an executor; however, a person can only have an executor if he has a Will because an executor is someone who the decedent nominated in his Will to serve in that role.  Without a Will, the decedent couldn’t have nominated an executor, so someone must be appointed as administrator of the decedent’s estate.

One big difference between an executor and an administrator (aside from the fact that one is nominated to serve by the decedent and one is not) is that an administrator must ensure he is distributing the decedent’s estate to all of the decedent’s heirs who are entitled to share in his estate.  (An executor need only follow the Will with regard to distributions.)   At first making distributions to an individuals heirs may sound simple, but as discussed above, if the decedent had no close relatives, this may be more difficult than it appears.

I have had several estate for which I either served as administrator or was appointed as administrator in which I had to hire a genealogist to search for the decedent’s heirs, and as stated, those heirs may be anywhere in the world.  I have had searches conducted in Ireland, England, and France, as well as the United States.

The cost of the genealogist is borne by the estate, and the time it takes to conduct a diligent search can be considerable.  Many of these searches have delayed the distribution of the estate for years.  The law states that an administrator must conduct a diligent search for known heirs and the search must be commensurate with the value of the estate.

An administrator who fails to conduct a diligent search can be liable to an heir who fails to receive his share of the estate.  Imagine a decedent who has 100 heirs all of the same degree of relation and the administrator fails to conduct a diligent search, finding only eighty of the 100 heirs.  The administrator could be held liable to the twenty heirs he failed to find and to whom he failed to make distributions.  In other words, the administrator could be pulling money out of his own pocket to pay these heirs, which is not a good thing.

All of this can be avoid by hiring an attorney and expressing your wishes in a written last will and testament.  If you clearly express your intentions and nominate an executor to handle your estate, your executor won’t have to face any of these problems and the people you wished to benefit from your estate actually will benefit, not some unknown relative in another country.