What is Intestate in New Jersey?

Many people are under the mistaken notion that when they die, their property and other assets will go to the family members that they want them to go to automatically. However, if you die without a will, there is no guarantee that the “right” family members will benefit from your estate. The matter of the distribution of your assets and the order in which your family members stand to inherit is decided by the laws of the state.

When someone passes away without a will in the state of New Jersey, the process is governed by what’s known as intestate succession. This set of laws dictates how your assets will be divided and who your beneficiaries will be. Although these laws aim to reflect general wishes, they may not align with your unique preferences and could lead to unintended consequences for your loved ones. Additionally, the lack of a will can make it more difficult for your estate to avoid probate, potentially prolonging the legal process and causing unnecessary stress for your loved ones.

Don’t leave the future of your estate to chance. Reach out to the New Jersey estate planning lawyers of The Matus Law Group today to secure a future that aligns with your wishes. Ensure your peace of mind by taking the first step towards a comprehensive estate plan tailored to your specific needs. Call us at (732) 785-4453 to schedule a consultation and protect what matters most to you.

What is Intestate Succession?

Intestate succession is a legal process that dictates how your assets are distributed if you pass away without a will, especially as it pertains to the state of New Jersey. 

If you die intestate, probate assets, which include properties and accounts that do not automatically transfer to a co-owner or designated beneficiary, are allocated to your nearest kin. For example, assets like a home owned solely by the deceased, bank accounts without payable-on-death designations, or personal property are subject to these laws.

The distribution is decided on a hierarchical order, with your spouse, children, and extended family members considered potential heirs. The state’s intestacy laws cast a wide net to include a diverse group of relatives from siblings to distant cousins, thereby significantly reducing the chances of your estate escheating, or reverting, to the state.

Key Points of New Jersey’s Intestate Succession Laws:

• Survivorship Period: New Jersey law requires a person to survive you by at least 120 hours to be eligible to inherit your assets. This means if a relative passes away shortly after you, they cannot inherit.
• Equivalence of Half-Relatives: In New Jersey, half-relatives are treated the same as “whole” relatives. A half-sibling has the same inheritance rights as a full sibling.
• Posthumous Relatives: Any relative who is conceived before but born after your death will inherit as if they were born during your lifetime, provided they live at least 120 hours after birth.
• Immigration Status: The inheritance rights of your relatives are not influenced by their citizenship or legal status in the United States.
• Advancements: If you have given a relative property prior to your death, it is only deducted from their share of the inheritance if it was clearly documented as an advancement at the time of the gift.

Understanding these rules is crucial because they lay the groundwork for who will receive your assets in the absence of a will. While intestate succession provides a safety net, it underscores the importance of having a will to ensure your wishes are followed after your death.

New Jersey Estate Planning Lawyer Christine Matus

What Will Happen to Your Estate if You Die Without a Will in New Jersey?

Intestate succession varies depending on what state you reside in. In New Jersey, intestate succession looks like the following:

• If you die with no surviving spouse, your children will inherit everything.
• If you have a surviving spouse, but no children or parents, your spouse inherits everything.
• If there is a surviving spouse and children from that spouse, the spouse inherits everything.
• If there is a surviving spouse and children from your relationship together, but the spouse also has children from another relationship, the spouse inherits 25% of the intestate estate (not less than $50,000 and not more than $200,000) plus one‑half of the remaining balance; your children divide the other half of the remaining balance.
• If there is a surviving spouse and you have children together and you also have children from another relationship, the spouse inherits 25% of the estate (not less than $50,000 or more than $200,000), and your children will divide the rest.
• If there is both a surviving spouse and surviving parents, the spouse inherits the first 25% (not less than $50,000 or more than $200,000) and three-quarters of the remaining estate. Surviving parents inherit the balance.
• If there are surviving parents but no surviving spouse or children, the parents inherit everything.
• If there is no surviving spouse, children, or parents, siblings will inherit everything.

Intestate succession goes further to provide for grandparents, grandchildren, and stepchildren. Although it happens infrequently, if there are no surviving family members at all, the state gets the entire estate.

Intestate Succession Scenario	Distribution of Estate
No surviving spouse, only children	Children inherit everything.
Surviving spouse, no children or parents	Spouse inherits everything.
Surviving spouse and children from that spouse	Spouse inherits everything.
Surviving spouse, children from both relationships	Spouse inherits 25% of intestate property (not less than $50,000 or more than $200,000) plus half of the balance. Children divide the rest.
Surviving spouse, children from the relationship, children from another relationship	Spouse inherits 25% of the estate (not less than $50,000 or more than $200,000). Children divide the rest.
Surviving spouse, surviving parents	Spouse inherits the first 25% (not less than $50,000 or more than $200,000) and three-quarters of the remaining estate. Surviving parents inherit the balance.
Surviving parents, no surviving spouse, children	Parents inherit everything.
No surviving spouse, children, parents, or siblings	Siblings inherit everything.

Legal Rights of a Child When a Parent Dies Without a Will

In New Jersey, when a parent dies without a will, the estate is distributed according to intestate succession laws. These laws determine how the deceased’s property is allocated among surviving relatives, including children. These laws underscore the importance of having a comprehensive understanding of how each child is treated under New Jersey’s legal framework for intestate succession.

Inheritance Rights of Biological and Adopted Children

Both biological and legally adopted children are treated equally under New Jersey’s intestate succession laws. Whether a child was born to the deceased or adopted during their lifetime, they are entitled to inherit an “intestate share” of their parent’s estate if no will is present (N.J. Stat. § 2A:22-3). The size of the share each child receives depends on factors such as how many children the deceased had, whether the deceased was married at the time of death, and whether the surviving spouse has children from another relationship.

• Biological children are automatically considered legal heirs and are entitled to inherit under intestate laws.
• Adopted children are treated the same as biological children. If a child was legally adopted by the deceased, they have an equal right to inherit under New Jersey intestate laws. It does not matter whether the adoption occurred early or later in life; as long as the child was legally adopted, their inheritance rights are protected.

However, children placed for adoption and who were legally adopted by another family lose their rights to inherit from their biological parents. Once adopted by another family, they become legal heirs of their adoptive parents and are no longer entitled to any share of their biological parents’ estate (N.J. Stat. §§ 2A:22-3, 9:3-50). There is an important exception to this rule: if a child is adopted by a spouse or domestic partner of their biological parent, their inheritance rights from the biological parent remain intact. This ensures that adopted children in blended families are not cut off from their biological parent’s estate.

Inheritance Rights of Stepchildren and Foster Children

Stepchildren and foster children present a unique challenge in intestate succession cases. Under New Jersey law, stepchildren and foster children who have not been legally adopted by the deceased do not automatically have a right to inherit when there is no will (N.J. Stat. § 3B:5-4). This is a critical distinction in cases where stepchildren or foster children have lived with the deceased for years but were never formally adopted.

Stepchildren and foster children may only inherit if there are no other surviving heirs, such as biological or adopted children, or a surviving spouse. In these rare cases, the estate may pass to stepchildren, but only after other eligible heirs have been considered. For this reason, families with stepchildren or foster children should consider formal adoption or drafting a will to ensure that these children are included in the estate plan.

It’s important to note that stepchildren who were not legally adopted by the deceased will not have any claim to the estate, even if they had a close emotional bond with the parent. This can lead to complicated legal battles if the family expects the stepchildren to inherit. Without a will or formal adoption, stepchildren are excluded from intestate inheritance, which can result in disputes and unexpected outcomes after the parent’s death.

Posthumous Children and Their Rights to Inheritance

New Jersey’s intestate succession laws also account for posthumous children, or children conceived before the parent’s death but born after the parent has passed away. Posthumous children are treated as if they were born during the parent’s lifetime, and they are entitled to an equal share of the estate (N.J. Stat. § 3B:5-8). However, in order to inherit, the posthumous child must survive for at least 120 hours (five days) after birth.

This rule ensures that posthumous children are not overlooked in the distribution of the estate. For example, if a parent dies while their spouse is pregnant, the unborn child will still inherit as if they were born before the parent’s death. This provision protects the rights of unborn children and ensures that they receive their rightful share, just like any other biological or adopted child.

The law is particularly important in cases where the deceased parent did not create a will but has a surviving spouse or other heirs who may attempt to claim the entire estate. New Jersey law ensures that posthumous children are not unfairly excluded from their inheritance.

Children Born Outside of Marriage

In New Jersey, children born outside of marriage are also entitled to inherit from their parent’s estate, provided that the deceased parent acknowledged their paternity or that paternity was legally established (N.J. Stat. § 9:17-41). This protects the inheritance rights of children who were not born within a marriage but have a legally recognized relationship with the deceased parent.

If the parent acknowledged the child as their own, or if paternity was confirmed through legal means, the child is treated as a legal heir and is entitled to an intestate share of the estate. This ensures that children born outside of marriage are not discriminated against when it comes to inheritance.

Children born during a marriage are automatically assumed to be the children of both parents and will receive a share of the estate unless proven otherwise. This applies to all children, regardless of the circumstances of their birth, ensuring fairness in the inheritance process.

Importance of Estate Planning to Override Intestate Succession in NJ

Estate planning is a crucial process that too often goes overlooked, yet its significance cannot be overstated – especially in New Jersey. Without a clear and legally binding estate plan, which includes drafting a will, the default intestate succession laws take over upon an individual’s death. These laws dictate the distribution of assets, which may not align with the deceased’s personal wishes or the unique dynamics of their family.

Intestate succession in New Jersey follows a rigid formula, generally favoring the closest relatives – spouses, and children first, then parents, siblings, and so forth. This one-size-fits-all approach can lead to unintended and sometimes distressing outcomes. It fails to take into account more complex family structures, such as stepchildren, non-marital partnerships, or estranged relatives. Moreover, it does not provide for non-relatives that one might want to inherit, such as close friends or caregivers, nor does it allow for charitable bequests.

Proper estate planning empowers individuals to direct their assets precisely where they wish. It ensures that those they want to support are provided for and that their legacy is preserved according to their values and intentions. For instance, in blended families, a will can specify inheritances that reflect the nature of these relationships, rather than leaving them to the mercy of impersonal statutes.

Furthermore, estate planning can also address other important issues, such as naming a guardian for minor children, establishing trusts for the management of assets, and minimizing potential estate taxes. By taking control of the estate planning process, New Jersey residents can ensure their personal preferences are respected and their loved ones are protected as they see fit.

Setting Up a Protective Trust for Minor Children

When a parent dies without a will, and a minor child stands to inherit, New Jersey law offers a legal pathway for setting up a protective trust. According to N.J.S.A. § 3B:12-54.1, a surviving parent or legal guardian may petition the Superior Court to establish a trust for the benefit of the minor child. This type of trust ensures that the child’s inheritance, including cash, real estate, and other assets, is managed responsibly until the child reaches adulthood.

A protective trust allows the parent or guardian to manage the child’s inheritance while ensuring that the assets are used solely for the child’s benefit. This includes covering essential needs such as health care, education, and living expenses. The trust can also specify at what age the child can access portions of the inheritance, preventing them from receiving a large sum before they are financially mature.

Provisions for a Minor’s Trust

When establishing a trust for a minor child, certain provisions must be included to ensure the assets are managed in the child’s best interest. These provisions are likely to be made mandatory by the court to safeguard the child’s future. They include:

• The trust’s assets and income must be used exclusively for the child’s benefit, covering health, education, support, and other essential needs.
• The child can request portions of the principal at specific ages, such as one-third at 25, half at 30, and the remainder at 35, or as otherwise determined by the court.
• In the event the child dies before the trust terminates, the remaining assets will be transferred to the child’s estate.
• A minimum of two trustees, or one corporate trustee, must be appointed to manage the trust. If a single parent is managing the trust, the court may appoint an additional trustee to ensure oversight.

These protective measures ensure that the child’s inheritance is preserved and responsibly administered during their formative years, with periodic access granted as they mature.

Protecting a Child’s Inheritance During a Parent’s Divorce

In cases of divorce, protecting a child’s inheritance can become complex. New Jersey law states that a child under 18 cannot control their inheritance, so a legal guardian, usually the surviving parent, is appointed to manage the assets. If the parent has passed away, the child’s ex-step-parent or the surviving ex-spouse could gain control over the child’s inheritance.

This situation could be risky if the surviving parent or ex-spouse is not trustworthy or if there are concerns about how they may manage the child’s inheritance. In such cases, a parent can take proactive steps by seeking legal advice and setting up a trust or other legal safeguards to prevent misuse of the child’s assets. An experienced probate attorney can help you through these issues and ensure that the child’s inheritance is protected from potential mishandling.

Factors the Court Considers When Approving a Minor’s Trust

When applying to the court for permission to set up a trust for a minor child, the court considers several key factors to ensure the trust is in the child’s best interest. These factors include:

• The size of the estate: The court will evaluate the amount of money or property involved to determine the appropriateness of a trust.
• Availability of other resources: If there are other financial resources available to support the child’s current needs, the court may weigh this when deciding on the trust structure.
• Investment stability: The court will consider the security of any investments made on behalf of the trust to ensure the child’s future is financially protected.
• Tax implications: The court will also evaluate any potential income tax consequences that might affect the child’s inheritance.
• Special needs or vulnerabilities: If the child has special needs or specific vulnerabilities, the trust will be designed to provide appropriate support.
• Long-term financial and psychological consequences: The court will consider the impact of placing a substantial part of the child’s inheritance into a trust that may not be accessible for a long period.

These factors help the court determine whether a trust is the best solution for protecting the child’s inheritance. The death of a parent is a traumatic experience, and ensuring that the child’s financial future is secure is of paramount importance. 

Take Charge of Your Legacy Today

The truth is, if you don’t make a plan, the state will make one for you – and it probably won’t look like what you had in mind. New Jersey’s intestate succession laws follow a fixed formula. They don’t account for your relationships, your intentions, or the promises you’ve made to your loved ones. Without a will, your property could end up in the hands of people you wouldn’t expect, or leave out those you care about most.

Proactive estate planning matters. It’s not just for the wealthy or the elderly – it’s for anyone who wants to make sure their family is cared for and their voice is heard, even after they’re gone. A New Jersey estate planning attorney from The Matus Law Group can help you put your wishes in writing and make sure everything is set up to reflect your goals. 

It’s a simple step that gives you peace of mind and saves your family from unnecessary stress down the line. With over 20 years of helping families in Monmouth, Ocean, and beyond, Christine Matus and her team bring the kind of care that turns legal paperwork into peace of mind.

If you’re ready to take the guesswork out of what happens to your estate, give us a call. We’re here to help you make thoughtful, clear decisions about your future. Reach out to The Matus Law Group today at (732) 785-4453 to get started.