Living Trusts and Privacy in New Jersey Estates
What Happened
A New Jersey elder law attorney published an analysis in September 2026 revisiting a long-held position about revocable living trusts. The piece, written by a certified elder law attorney practicing in Monmouth and Ocean Counties, acknowledges a shift in thinking about when New Jersey families benefit from living trusts. For years, the attorney had advised clients that New Jersey's straightforward probate process made living trusts unnecessary for most residents. That advice is now changing.
The article explains the foundational mechanics of wills and living trusts. A will controls only probate property — assets held solely in a person's name without a named beneficiary. A revocable living trust, by contrast, controls assets titled directly in the trust's name. When a person holds assets both inside and outside a trust, a pour-over will directs any remaining probate assets into the trust at death. The attorney describes living trusts as "will-substitutes" because they perform the same distribution function a will performs, but outside the public probate process.
The article identifies two situations where a living trust provides genuine value for New Jersey residents. The first involves owning real estate in another state, such as Florida or California, where probate is more complex and costly. The second — and newly emphasized — reason is privacy. When a will passes through probate, it becomes a public document. Anyone can read it. The attorney now considers this a meaningful concern, particularly for blended families navigating second marriages, step-children, and unequal distributions.
What It Means
New Jersey's probate process is genuinely accessible compared to most states. The Surrogate's Court admits a will and grants letters testamentary in a single proceeding. The court filing fee runs $100N.J.S.A. 22A:2-30Verified Sep 8, 2026, and the overall process moves relatively quickly for straightforward estates. New Jersey does not offer an informal or registrar-track probate process — every will passes through the Surrogate as Judge of the Surrogate's Court. That structure keeps things orderly but also means every probated will enters the public record.
The privacy concern the article raises carries real weight for New Jersey families with blended households. When a surviving spouse in a second marriage dies and leaves assets exclusively to her biological children, the stepchildren receive nothing. They will know this outcome regardless. But a probated will makes the specific language of that decision visible to anyone who requests the file. A living trust keeps those distribution instructions private. The trustee carries out the terms without any court filing, and the document itself remains out of the public record. For families managing complex dynamics around inheritance, that distinction matters. The article's blended-family example reflects a pattern that estate planners across New Jersey encounter regularly, particularly as second marriages become more common among older adults.
Attorney fees in New Jersey probate proceedings run on a reasonable-compensation standard, typically ranging from 2.4%R. 4:42-9(a)(3) (court may allow a counsel fee out of the estate in a probate action) and R. 4:42-9(b) (fee must be supported by an affidavit of services addressing the RPC 1.5(a) reasonableness factors; no statutory percentage); N.J.S.A. 3B:18-6 (attorney also serving as fiduciary)Verified Sep 8, 2026View source to 3.9%R. 4:42-9(a)(3) (court may allow a counsel fee out of the estate in a probate action) and R. 4:42-9(b) (fee must be supported by an affidavit of services addressing the RPC 1.5(a) reasonableness factors; no statutory percentage); N.J.S.A. 3B:18-6 (attorney also serving as fiduciary)Verified Sep 8, 2026View source of the estate. Creditors hold 9 monthsN.J.S.A. 3B:22-4Verified Sep 8, 2026View source from the date of death to present claims against the estate. Administrators in New Jersey must post a surety bond, though a will can waive this requirement for a named executor. These procedural realities apply equally whether a family uses a will alone or combines a pour-over will with a living trust. The trust itself does not eliminate probate for assets left outside it — only assets properly titled in the trust's name pass without court involvement. Families considering this approach benefit from understanding what it means to fund a trust and why that step determines whether the privacy benefit actually materializes. A trust that holds no assets at death provides no privacy protection.
New Jersey also lacks a transfer-on-death deed option for real estate, which means homeowners cannot use a simple beneficiary designation to pass property outside probate the way residents of 35 other states can. That gap makes living trusts a more significant tool for New Jersey property owners who want to avoid probate on their homes. Transferring real property into a revocable trust does not trigger New Jersey's realty transfer fee. Property tax assessments also remain unchanged when real estate moves into a revocable trust. These features remove two common obstacles that might otherwise discourage families from funding a trust with their home. Understanding how putting a house in a trust works helps families evaluate whether this approach fits their situation.
The inheritance tax dimension adds another layer of context for New Jersey families. New Jersey no longer imposes a state estate tax on deaths occurring on or after January 1, 2018. New Jersey does impose an inheritance tax, though Class A beneficiaries — including spouses, children, and grandchildren — pay no inheritance tax on amounts they receive. For blended families where assets pass to stepchildren or more distant relatives, inheritance tax exposure becomes a planning consideration alongside the privacy question the article raises. A living trust does not eliminate inheritance tax liability, but it does keep the distribution terms out of the public record, which can reduce friction in families where different beneficiaries face different tax treatment.
Context from SimplyTrust
The article's core insight — that privacy is a legitimate and underappreciated reason to establish a living trust — reflects a broader truth about estate planning. A will serves many families well, but it operates through a public court process. A living trust keeps distribution decisions within the family. For New Jersey residents weighing these options, understanding how a trust helps avoid probate and the risks of planning without a clear structure provides a useful foundation for that decision. The right choice depends on asset composition, family dynamics, and how much weight a family places on keeping their financial affairs out of the public record.
SimplyTrust offers resources for families working through these questions, including guides on the differences between wills and trusts and how trust funding works in practice. Families navigating blended-family dynamics, out-of-state property, or concerns about inheritance disputes benefit from reviewing their options carefully. The trust vs. will comparison covers the key structural differences that determine which approach fits a given family's needs. Estate planning decisions made today shape what families experience during an already difficult time — and privacy, once lost through probate, cannot be recovered after the fact.
Source: Preserving Your Right to Privacy
