You can have both a will and a revocable living trust in New Jersey. In many cases, people benefit from using both documents in their estate plan, as each serves different purposes. A will directs asset distribution after death and names guardians for minor children, while a trust can help you manage assets during your lifetime and avoid probate when you die.
At The Matus Law Group, New Jersey estate planning attorney Christine Matus helps families throughout Monmouth County create comprehensive plans that protect their assets and provide for loved ones. Our trust attorneys work with clients to determine which combination of estate planning tools best fits their situation, whether that involves wills, trusts, or both.
This guide explains what trusts and wills do, when each option makes sense, and how to decide which tools belong in your plan. You will also learn about the requirements for creating valid estate planning documents in New Jersey and the probate process at the Monmouth County Surrogate Court. Call The Matus Law Group at (732) 785-4453 to speak with Christine Matus about your estate planning needs.
What Is a Trust?
A trust is a legal arrangement that transfers ownership of property to a trustee who manages those assets for the benefit of designated beneficiaries. Under the New Jersey Uniform Trust Code (New Jersey Statutes Annotated (N.J.S.A.) 3B:31-1 et seq.), trusts are governed by specific requirements for creation, operation, and termination.
Creating a trust involves three key parties. The grantor establishes and funds the trust. The trustee manages the assets in accordance with the trust document’s terms. The beneficiaries receive distributions from the trust. The trust document itself outlines exactly how the trustee should handle the property and when beneficiaries should receive their shares.
A person creating a revocable trust (the type most people use for estate planning) must have the same legal capacity required to make a will under New Jersey law. In New Jersey, a person who is 18 or older and of sound mind may make a will.
What Is a Revocable Living Trust?
A revocable living trust is a trust created during your lifetime that allows you to retain control over your assets while you are alive. You can modify or terminate this trust at any time before your death or incapacitation. This flexibility makes revocable living trusts popular for estate planning.
When you create a revocable living trust, you typically serve as the trustee yourself. This means you continue to manage and use your property exactly as you did before creating the trust. If you become incapacitated or die, a successor trustee takes over management of your assets without court involvement. The trust continues to operate in accordance with your written instructions.
The main advantage of a revocable living trust is avoiding probate. When you die, assets held in the trust pass directly to your beneficiaries without going through the Surrogate Court. This can save time and money compared to probate, which can take months or longer for complex estates. Assets not held in the trust, however, will still require probate.
A revocable living trust can help you:
- Set up timed or staged distributions to beneficiaries (instead of one lump sum)
- Help your successor trustee manage assets if you become incapacitated
- Avoid probate for assets that are titled in the trust
- Keep most estate details more private than a will-based probate (because trusts generally are not filed with the court)
- Create planning instructions for special situations (for example, sub-trust provisions that can help a beneficiary who needs long-term management)
What Is the Difference Between a Living Trust and an Irrevocable Trust?
The terms “trust” and “living trust” are sometimes used interchangeably, but they have important distinctions. A trust is a broad category that includes many different types of legal arrangements. A living trust specifically refers to any trust created during your lifetime.
Living trusts come in two main forms. A revocable living trust can be changed or canceled by the grantor at any time. The grantor typically retains full control over the assets and can add or remove property freely. This flexibility makes revocable trusts useful for many estate planning situations.
An irrevocable trust is usually harder to change than a revocable trust. In many cases, changes require court involvement, and New Jersey law allows certain modifications or terminations when the required people consent and the court is satisfied that the legal standard is met.
When to Use Each Type
Revocable trusts are a good option when you want flexibility. You can adjust beneficiaries, change distribution terms, or dissolve the trust entirely if your circumstances change. Many people use revocable trusts as their primary estate planning vehicle because they avoid probate while maintaining full control.
Irrevocable trusts serve specific planning goals. They can protect assets from creditors, reduce estate taxes, or preserve eligibility for government benefits. Once property transfers into an irrevocable trust, it is no longer counted as part of your estate for these purposes. However, this protection comes at the cost of giving up control.
| Trust Type | Can Be Changed | Grantor Control | Best For |
|---|---|---|---|
| Revocable Living Trust | Yes, at any time | Full control retained | Avoiding probate, maintaining flexibility |
| Irrevocable Living Trust | No, without court approval | Control given up | Asset protection, tax planning, and Medicaid eligibility |
Trust Attorney in New Jersey – The Matus Law Group
Christine Matus, Esq.
Christine Matus is a New Jersey trust attorney with over 30 years of experience in estate planning and administration. She was admitted to the New Jersey Bar in 1995 and to the U.S. District Court for the District of New Jersey the same year. Ms. Matus earned her J.D. from Touro College, Jacob D. Fuchsberg Law Center, in 1995, and her B.A. from Douglass College, Rutgers University, in 1992. She also studied International Criminal Law and Ethics at St. Anne’s College, Oxford University.
Ms. Matus is a member of the New Jersey State Bar Association and serves on the Board of Trustees of the Ocean County Bar Association. She also holds memberships in the Asian Pacific American Lawyers Association and the American Bar Association, where she serves on its Advisory Panel. Her professional involvement includes serving on the Attorney Arbitration Committee since 2021 and as Past President of the Board of Directors of 21 Plus.
What Are the Disadvantages of a Living Trust?
Living trusts offer significant benefits for estate planning, but they also come with drawbacks you should understand before committing to this approach. The main disadvantages involve complexity, cost, and ongoing maintenance requirements.
Higher Cost and Complexity
Establishing a living trust is more complicated than creating a will. The process requires drafting a detailed trust document, transferring property into the trust, and updating all relevant titles and deeds. Attorney fees for trust creation typically exceed the cost of preparing a simple will. These higher upfront costs can be offset by avoiding probate later, but the savings depend on your estate’s size and complexity.
Ongoing Maintenance Requirements
A living trust requires constant maintenance. Every time you acquire new property, you must retitle it in the trust’s name. This includes real estate, bank accounts, investment accounts, and business interests. If you forget to transfer an asset, that property will not be governed by the trust and must go through probate. Many people struggle to keep their trusts properly funded over time.
No Guarantee of Complete Probate Avoidance
A living trust does not guarantee complete probate avoidance. If you own property not titled in the trust when you die, those assets will still require probate at the Surrogate Court. Pour-over wills can direct these assets into the trust, but they must first pass through probate.
Key Takeaway: Living trusts cost more to create than wills, require ongoing maintenance to keep assets properly titled, and do not guarantee all property will avoid probate. These disadvantages must be weighed against the benefits of avoiding probate and maintaining privacy.
What Is a Will?
A will is a legal document that specifies how you want your assets distributed after death and names guardians for minor children. It is a foundational estate planning tool that takes effect only upon your death. In New Jersey, wills must meet specific requirements to be valid and enforceable.
When you create a will in New Jersey, you designate an executor to manage your estate. The executor’s duties include paying debts and taxes from estate funds, distributing property to beneficiaries according to your instructions, and filing necessary paperwork with the Surrogate Court. If you have minor children, your will lets you name a guardian to care for them if both parents die.
A will in New Jersey must be in writing and signed by the testator. At least two witnesses must also sign it, and the witnesses must sign within a reasonable time after witnessing either (1) the signing or (2) the testator’s acknowledgment of the signature or the will. New Jersey law also requires the person making the will to be 18 or older and of sound mind.
The Probate Process
All wills go through probate, which is the legal process of validating the will and administering the estate. Probate takes place at the Monmouth County Surrogate Court, located at One East Main Street in Freehold. Probate typically involves several steps. The executor files the will with the Surrogate Court and obtains letters testamentary, which give legal authority to act on behalf of the estate. The executor then identifies all assets, pays debts and taxes, and distributes the remaining property to beneficiaries. This process usually takes several months to over a year, depending on the estate’s complexity.
What Is the Difference Between a Will and a Trust in New Jersey?
A will and a revocable living trust can both direct what happens to property after death, but they operate differently. A will governs assets that pass through the probate estate and becomes operative at death. A revocable living trust can hold and manage property during life and continue after death, but only property transferred to the trust is governed by its terms.
| Comparison point | Will | Revocable living trust |
|---|---|---|
| When it operates | At death | During life and after death |
| Probate | Assets passing under the will go through probate | Assets properly owned by the trust usually avoid probate |
| Incapacity | Does not itself provide lifetime management of assets | A successor or co-trustee can manage trust assets if the trust terms permit |
| Privacy | A probated will becomes part of the Surrogate’s judiciary records | The trust usually is not filed as a probate record solely because of the settlor’s death |
Which Assets Pass Through a Will?
Assets owned solely by the decedent without a survivorship feature, beneficiary designation, or trust ownership usually become part of the probate estate and can pass under the will. A will does not control property that passes automatically to a surviving joint owner, property with a valid beneficiary designation, or assets already owned by a trust.
Which Assets Can a Trust Keep Out of Probate?
Assets properly transferred to a revocable living trust, such as real estate, eligible financial accounts, and transferable business interests, can usually be administered outside probate. Property that was never transferred to the trust can still become part of the probate estate.
A pour-over will is often used with a revocable living trust to direct remaining probate assets into the trust after death. Those assets do not avoid probate simply because the will directs them to the trust.
How Do Wills and Trusts Differ in Cost and Complexity?
A revocable living trust often requires more work and expense upfront because the trust must be drafted and assets must be properly transferred or retitled. The trust also needs to be maintained as assets are acquired, sold, or changed.
A will is usually simpler to establish because assets do not have to be transferred into a separate trust during life. However, assets controlled by the will must go through the applicable probate and estate administration process after death. The better option depends on factors such as the types of assets you own, where property is located, incapacity planning needs, privacy concerns, and how you want assets administered after death.
Which Document Controls Your Property?
The document that controls an asset depends largely on how that asset is owned. Property held in a revocable living trust is governed by the trust terms rather than the will. Property remaining in the probate estate can be distributed according to the will.
This makes proper trust funding important. Creating a revocable living trust without transferring assets to it does not remove those assets from the probate estate. New Jersey law also permits court proceedings involving trusts, so it is too broad to say that probate or other courts have no authority over trust matters.
A New Jersey estate plan can use a will, a revocable living trust, or both. When both are used, the trust can govern property transferred to it, while a pour-over will can address remaining probate assets. A will can also nominate a guardian for minor children, subject to New Jersey law and the court’s authority concerning the child’s best interests.
Key Takeaway: A will directs the disposition of probate assets after death, while a properly funded revocable living trust can manage assets during life and keep those assets outside probate after death. The right combination depends on your property, family circumstances, and estate planning goals.
For guidance on choosing a will, a revocable living trust, or a combination of both, contact Christine Matus at The Matus Law Group at (732) 785-4453.
When Should You Use a Will?
A will works well for straightforward estate planning situations where probate costs are manageable. If your estate is relatively simple, a will may be the most cost-effective option for directing asset distribution after your death.
If you have minor children, a will is the place to name a guardian. Even if you also create a trust, most parents still use a will for guardianship nominations.
Smaller estates often benefit from will-based planning. If your assets consist primarily of a home, personal property, and modest bank accounts, probate costs may be reasonable compared to the expense of creating and maintaining a trust. New Jersey offers simplified probate procedures for estates under certain value thresholds, making wills more attractive for these situations.
Wills also make sense when you want a simple, straightforward plan. Some people prefer the clarity and simplicity of a will over the complexity of trust administration. If you are comfortable with your beneficiaries receiving property through probate, a will accomplishes your goals without added complications.
When Should You Use a Trust?
A trust makes sense when avoiding probate provides significant value for your estate and beneficiaries. Several situations strongly favor trust-based planning over relying solely on a will.
You should consider a trust if you own real estate in multiple states. Property in each state would require separate probate proceedings without a trust. This multiplies costs and delays. A trust holds all real estate, regardless of location, allowing for a single unified administration after your death.
Trusts work well when you want to maintain privacy. Wills become public records during probate at the Monmouth County Surrogate Court. Anyone can review the document and see what you owned and who inherited your property. Trusts remain private documents that are not filed with any court, keeping your estate details confidential.
Special Circumstances
If you have beneficiaries who need long-term management, trusts offer superior tools for that purpose. You can create provisions that distribute property over time rather than all at once. This protects beneficiaries who struggle with financial management or have special needs. Trusts can provide for disabled beneficiaries without affecting their eligibility for government benefits.
Business owners benefit from trusts because business interests transfer smoothly without probate delays. Trusts ensure business operations continue uninterrupted while ownership transfers to new parties. This continuity matters more for businesses than for simple assets like bank accounts.
Incapacity planning favors trusts over wills. If you become unable to manage your affairs, your successor trustee can immediately take over without court proceedings. A will provides no help during incapacity because it only activates at death. Powers of attorney supplement wills for incapacity, but trusts consolidate both functions.
Key Takeaway: Trusts make sense when you own out-of-state property, want privacy, need to provide long-term asset management for beneficiaries, own a business, or want comprehensive incapacity planning. These significant benefits justify the higher upfront cost.
Can You Have Both a Will and a Trust?
Yes, you can have both a will and a trust in New Jersey, and many comprehensive estate plans include both documents. They serve complementary purposes and work together to provide complete estate planning coverage.
The trust handles most of your property during life and after death. It manages assets you transfer to it and distributes them to beneficiaries without the need for probate. This avoids delays and maintains the privacy of major assets such as real estate, investment accounts, and business interests.
The will serves as a backup and addresses matters that trusts cannot handle. It catches any property you failed to transfer into the trust. It names guardians for minor children. It can create a testamentary trust for children or other beneficiaries. These functions make wills essential even when you use a trust as your primary planning tool.
Pour-Over Wills
Many trust-based estate plans include a pour-over will. This special type of will directs any property not already in the trust to be transferred into the trust after your death. The property still goes through probate first, but ultimately ends up in the trust, where it is distributed according to the trust’s terms.
Pour-over wills provide a safety net. If you acquire property shortly before death and forget to retitle it in the trust, the pour-over will ensure that the property eventually reaches the trust. This prevents unintended distributions under New Jersey’s intestacy laws.
If your will’s terms conflict with your trust’s terms, the trust controls the disposition of property held in the trust. Courts recognize that trust property is not part of the probate estate, so the will has no authority over it. This makes proper asset titling critical.
Key Takeaway: Most complete estate plans in New Jersey include both a revocable living trust for major assets and a will for guardianship nominations and backup property coverage. The two documents work together to provide comprehensive protection.
Contact Christine Matus at (732) 785-4453 to create an integrated estate plan that effectively uses both wills and trusts.
What Happens If You Die Without a Will or Trust in New Jersey?
If you die without a will or trust, New Jersey’s intestacy laws determine who inherits your property. These default rules may not match your wishes, which is why estate planning is so important.
Under New Jersey intestacy law, your spouse (or civil union partner / domestic partner) and your descendants are often the primary heirs, but the spouse’s share depends on your family situation. For example, the surviving spouse receives the entire intestate estate only in certain situations (including when all descendants are also descendants of the surviving spouse and the surviving spouse has no other living descendants). In other situations, such as when a parent survives, when the surviving spouse has descendants from another relationship, or when the decedent has descendants from another relationship. The spouse’s share follows New Jersey’s statutory formula (including the “first 25%” rule with the minimum and maximum dollar amounts stated in the statute).
If you die without a spouse, your children inherit everything in equal shares. If a child has already died, that child’s descendants take their parent’s share. If you have no spouse or descendants, your parents inherit. If your parents are deceased, your siblings become your heirs.
The Probate Process Without a Will
Dying without a will does not avoid probate. Your estate still goes through the Monmouth County Surrogate Court, but the court appoints an administrator instead of an executor. The administrator follows the same basic procedures as an executor, but distributes property according to intestacy law rather than your personal wishes.
Intestacy creates several problems. You have no control over who receives your property or when they receive it. You cannot name guardians for minor children. You cannot create trusts for young beneficiaries or those with special needs. You cannot leave specific items to specific people. All these decisions are made by statute rather than by you.
New Jersey Estate Planning Lawyers Ready to Help You
Deciding between a will and a trust requires careful analysis of your specific situation. Your assets, family structure, goals, and concerns all influence which estate planning tools work best for you.
Christine Matus has helped families create comprehensive estate plans for over 30 years. At The Matus Law Group, our estate planning attorneys design plans that protect assets, avoid unnecessary probate expenses, and provide for loved ones in accordance with their wishes. We explain your options clearly so you can make informed decisions about your estate.
Call The Matus Law Group at (732) 785-4453 for a consultation. Our offices in Toms River and Red Bank serve families throughout New Jersey. We will review your assets, discuss your goals, and recommend whether a will, a trust, or both belong in your estate plan
Frequently Asked Questions
Does putting property in a trust mean I no longer own it?
With a revocable living trust, you typically remain in control of the property transferred to the trust and can serve as your own trustee. You can manage the assets, change the trust, or revoke it during your lifetime. An irrevocable trust involves different rules and usually requires giving up substantially more control.
Does a revocable living trust protect assets from creditors?
A standard revocable living trust is primarily an estate planning and probate-avoidance tool, not an asset-protection trust. Irrevocable trusts can provide stronger asset-protection benefits in appropriate circumstances, but they also involve greater restrictions on the grantor’s control over the property.
What happens to property that was never transferred into my trust?
Property that was not properly transferred to a revocable living trust can remain part of your probate estate. A pour-over will can direct those remaining assets into the trust after death, but the assets generally must pass through probate first.
Can a trust help if I own property outside New Jersey?
A trust can be particularly useful for someone who owns real estate in more than one state. Properly transferring out-of-state property to a trust can help avoid separate probate proceedings for that property after death.
Can I name a guardian for my children in a trust?
A will is the primary estate planning document used to nominate a guardian for minor children. This is one reason someone with a revocable living trust may still need a will as part of the overall estate plan.
Do I need to update my trust when I acquire new assets?
A living trust requires ongoing attention to funding. When you acquire assets that you want governed by the trust, they generally need to be properly transferred or titled so they become trust property. Assets left outside the trust may still be subject to probate.
