Estate Planning and Probate in New Jersey: Wills, Trusts, and the Surrogate's Court
New Jersey has an inheritance tax, a unique Surrogate's Court system, and specific rules for wills and trusts that differ meaningfully from federal law and other states. The separate New Jersey estate tax no longer applies to deaths on or after January 1, 2018. This guide explains core planning and probate concepts and links to the current primary sources.
Not legal advice. Estate planning is highly personal and fact-specific. Tax laws change frequently. Consult a licensed New Jersey estate planning attorney and a CPA before making estate planning decisions.
Why Estate Planning Matters in New Jersey
New Jersey imposes an inheritance tax on certain transfers from a decedent to a beneficiary, with the result depending largely on the beneficiary's relationship to the decedent. The separate New Jersey estate tax is no longer imposed for people who died on or after January 1, 2018. Because classifications, exemptions, deadlines, and forms can change, confirm current rules with the New Jersey Division of Taxation's inheritance and estate tax guidance before acting.
Beyond taxes, New Jersey's probate process — administered through the Surrogate's Court in each county — requires careful navigation. Without a properly drafted will and complementary documents (durable power of attorney, healthcare proxy, living will), a decedent's estate may be distributed according to the intestate succession statutes, which may not reflect the decedent's wishes, and family members may face a lengthy and expensive probate process.
Wills in New Jersey
Requirements for a Valid Will
New Jersey's will statute is found at N.J.S.A. 3B:3-1 et seq. To be valid, a will must: (1) be in writing; (2) be signed by the testator (the person making the will) or by another person in the testator's presence and at the testator's direction; and (3) be signed by at least two witnesses who sign within a reasonable time after witnessing the testator's signature or the testator's acknowledgment of the signature.
New Jersey also recognizes holographic wills — wills entirely in the testator's handwriting and signed by the testator — without the need for witnesses. However, holographic wills are more susceptible to challenges and ambiguity, and they are generally not recommended as a substitute for a properly drafted, witnessed will.
A will may be challenged on grounds of lack of testamentary capacity (the testator did not understand the nature of making a will, the extent of their property, or the natural objects of their bounty), undue influence, fraud, or improper execution. Will contests are litigated in the Superior Court, Chancery Division, Probate Part.
Self-Proving Wills
A will can be made "self-proving" by attaching an affidavit signed by the testator and witnesses before a notary public. A self-proving will can be admitted to probate without requiring the witnesses to appear and testify — a significant practical advantage when witnesses may be difficult to locate years after the will was executed.
Trusts in New Jersey
New Jersey's trust law is governed by the New Jersey Uniform Trust Code (NJUTC), N.J.S.A. 3B:31-1 et seq., which took effect in 2016. Trusts are a flexible estate planning tool that can accomplish goals that a will alone cannot: avoiding probate, providing for minor children or beneficiaries with special needs, minimizing estate and inheritance taxes, and protecting assets from creditors.
Revocable Living Trust
Created during the grantor's lifetime; the grantor retains control and can amend or revoke at any time. Assets held in the trust pass to beneficiaries outside of probate upon the grantor's death. Does not provide asset protection or tax benefits during the grantor's lifetime.
Irrevocable Trust
Cannot be amended or revoked once created (with limited exceptions). It can be used for carefully planned asset-management, benefit-eligibility, and federal-tax objectives, but its legal and tax consequences depend on the instrument and the person's facts.
Special Needs Trust
Holds assets for a beneficiary with a disability without disqualifying the beneficiary from means-tested government benefits (Medicaid, SSI). Must be carefully drafted to comply with federal and state benefit program rules.
Testamentary Trust
Created by a will and takes effect only upon the testator's death. Does not avoid probate (the will must be probated to fund the trust), but provides ongoing management of assets for minor children or other beneficiaries.
The New Jersey Inheritance Tax
New Jersey's inheritance tax is levied on the transfer of property from a decedent to certain beneficiaries, based on the relationship between the decedent and the beneficiary. The tax is paid by the beneficiary (or the estate on the beneficiary's behalf), not the estate itself. The rates and exemptions depend on the "class" of beneficiary:
| Class | Beneficiaries | Exemption | Tax Rate |
|---|---|---|---|
| Class A | Spouse, civil union/domestic partner, parents, grandparents, children (including adopted), grandchildren | Unlimited (fully exempt) | 0% |
| Class C | Siblings, sons/daughters-in-law | $25,000 per beneficiary | 11%–16% on amounts over $25,000 |
| Class D | Other beneficiaries, including many nieces, nephews, friends, and unmarried partners | Check current Division of Taxation guidance | Tax treatment varies by relationship and transfer |
| Class E | Qualified charities, religious organizations, educational institutions | Unlimited (fully exempt) | 0% |
New Jersey eliminated its estate tax effective January 1, 2018, but the inheritance tax remains in effect. Transfers to a spouse, civil-union partner, many lineal family members, and qualifying charities are generally treated differently from transfers to more remote relatives and non-relatives. Use the State's current guidance and forms—not a general article—as the final source for a specific estate or beneficiary classification.
Intestate Succession: Dying Without a Will
If a New Jersey resident dies without a valid will (intestate), their estate is distributed according to the intestate succession statutes at N.J.S.A. 3B:5-1 et seq. The distribution depends on which family members survive the decedent:
- Spouse/partner only:Entire estate to spouse or civil union partner.
- Spouse + children of both:Entire estate to spouse.
- Spouse + children (one not spouse's):25% of estate (min $50K, max $200K) to spouse; remainder to all children equally.
- Children only (no spouse):Entire estate divided equally among children.
- Parents only:Entire estate to parents equally.
- Siblings only:Entire estate divided equally among siblings.
Critically, unmarried partners receive nothing under intestate succession regardless of the length of the relationship. Minor children inherit outright at age 18 unless a guardian of the property is appointed, which may require court supervision. These outcomes illustrate why a will is essential for anyone with non-traditional family structures or specific wishes about asset distribution.
The Surrogate's Court and Probate Process
New Jersey's probate process is administered by the Surrogate's Court in each of the state's 21 counties. The Surrogate is an elected official (a constitutional officer under Article VII of the NJ Constitution) who serves a five-year term. The Surrogate's Court handles the probate of wills, appointment of executors and administrators, and guardianship of minors and incapacitated persons.
New Jersey's probate process is relatively streamlined compared to many other states. For most estates, probate can be completed without court supervision through the "informal" probate process. The executor presents the original will and a certified copy of the death certificate to the Surrogate, pays the filing fee, and receives Letters Testamentary — the document that authorizes the executor to act on behalf of the estate.
The executor must then: (1) notify beneficiaries and creditors; (2) inventory and appraise estate assets; (3) pay valid debts and taxes; (4) file the New Jersey inheritance tax return (Form IT-R) within eight months of death; and (5) distribute the remaining assets to beneficiaries. The entire process typically takes 9–18 months for a straightforward estate.
Essential Estate Planning Documents
Last Will and Testament
Directs distribution of probate assets, names an executor, and (for parents of minor children) nominates a guardian.
Revocable Living Trust
Holds assets outside of probate, provides for management during incapacity, and distributes assets to beneficiaries without court involvement.
Durable Power of Attorney
Authorizes an agent to manage financial affairs if you become incapacitated. 'Durable' means it remains effective even if you become incapacitated. Without one, a court-appointed guardian may be required.
Healthcare Proxy / Medical Power of Attorney
Designates a healthcare representative to make medical decisions if you cannot. Governed by N.J.S.A. 26:2H-53 et seq.
Advance Directive / Living Will
Documents your wishes regarding life-sustaining treatment, artificial nutrition, and other end-of-life medical decisions. Governed by the New Jersey Advance Directive for Health Care Act.
Beneficiary Designations
Life insurance, retirement accounts (IRAs, 401(k)s), and payable-on-death bank accounts pass outside of probate via beneficiary designations. These must be reviewed and updated regularly — they override your will.
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About This Article
Published by JerseyLaw.ai, the independent publisher of this website. Fact-checked against the New Jersey Division of Taxation guidance on September 26, 2026. For corrections or suggestions, contact editorial@jerseylaw.ai.