New Jersey Estate Administration & Probate

Losing a loved one is never easy. Often, family and friends need time to heal and move forward from their loss. However, if the person who died left behind certain assets or minor children, steps need to be taken to transfer those assets and determine guardianship. This process is known as estate administration (if there is no Will) or probate (if there is a Will). At the Law Office of Jace C. McColley, LLC, we assist our clients in probating estates and settling the affairs of their loved ones that passed away. Following is an overview of estate administration and probate in New Jersey. Contact our firm to schedule a consultation for specific information relevant to your particular situation.

Estate Administration Without a Will

When a person dies without a will, they are said to have died intestate, and the laws of the state of New Jersey will determine how their estate is distributed. However, before that happens, and in cases where the estate’s assets exceed $50,000, the court must appoint an administrator to oversee the estate administration.

Qualifications of an Administrator

New Jersey law establishes who should serve as the administrator of an intestate estate. First, the surviving spouse or domestic partner shall serve as administrator unless they do not desire to do so or there isn’t a surviving spouse or domestic partner. Then, any other heirs to the estate may accept the administration.

If there are no heirs or no heirs claim administration within 40 days after the decedent's death, the administration may be granted to any person that applies, and the court deems fit.

The administrator must provide the Surrogate’s office with proof of death and the names and addresses of all heirs, along with their relationship to the deceased. The Surrogate's office will request a list of the deceased’s assets and debts, along with any other information they deem necessary.

Surety Bonds

The court may require a surety bond to protect the assets of the estate. The amount of the bond will depend on the value of the estate as well as other factors, such as the number of beneficiaries. There are agencies available for the administrator to work with to obtain the bond, and our firm can help walk our administrator clients through this process.

Duties of the Administrator

The estate administrator is tasked with determining, collecting, and managing any assets of the estate. They are also responsible for recognizing and paying any debts or liabilities the estate may be subject to. Filing taxes for the estate is another job of the administrator.

Once all assets and debts have been determined, the administrator will be able to distribute the remaining assets to the beneficiaries, which are determined by the New Jersey laws of intestacy. These laws consider the closest relatives to the deceased and not other relationships. Ensuring that assets pass to the people that a person cares about most, regardless of their kinship, is one reason why having an estate plan in place is beneficial.

Being an administrator can be complicated, and the assistance of an attorney is often needed.

Probate With a Will

When a person dies with a will, they are said to have died testate, and the terms of their will dictate how their estate is administered. For example, the will names an executor, which is the person that is responsible for the probate of the estate. A testator can also list in their will who they wish to have guardianship of any minor children or adult children with special needs that they may have.

Duties of the Executor of a Will

Our firm often helps executors with the many tasks they have to complete as executors of an estate. Our services include assistance with the following executor duties.

Initial Appointment

The executor will need to make arrangements to appear at the Surrogate Court with the original will, a certified copy of the death certificate, and a list of heirs once ten days have elapsed since the decedent passed away. The Surrogate Court will review the documentation and may have forms for the executor to complete. Next, the executor shall complete an Application for Probate. Once the Surrogate Court approves the application, they will provide letters and certificates to the executor so they will be able to probate the estate. These letters and certificates are necessary for the executor to prove their authority and ability to make decisions for the estate to other parties, such as creditors.

Property inventory

The executor is responsible for “marshaling the assets,” which means determining and collecting all the assets of the deceased. Once the executor has ascertained all the assets of the deceased, they must also determine all the debts and liabilities owed by the estate. The executor will issue notice to the decedent’s creditors. Once the creditors have made contact with the executor regarding what they are owed, the executor will need to determine which claims to accept or reject. Common debts that the estate owes include medical bills and the cost of the funeral for the decedent.

It is possible to negotiate with the creditors to settle claims for less than the amount owed, which is another area in which our firm can provide assistance.

Non-Probate Accounts

Certain assets of the deceased are not subject to probate. This includes:

• Assets that the deceased owned with someone else and the assets pass automatically to the other person
• Life insurance proceeds are paid to the beneficiary named on the policy and do not pass through probate
• Pension benefits as they are often excluded from probate
• Assets held in certain types of trusts
• Payable on death bank accounts

These non-probate accounts are exempt from probate and can often be handled without court oversight.

Accounting

The executor typically opens a bank account for the estate. Monies that come into the estate are deposited into the account, and debts are paid out of the account. The executor must keep detailed records of all money coming into and going out of the estate during the probate process.

Beneficiaries are able to review the accounting, and if they approve it, they each sign a release and refunding bond. There are two purposes of the release and refunding bond. The first is to release the executor from any liability regarding the probate of the estate. The second is to enter into an agreement with the beneficiary that should any unexpected liabilities arise; they understand that they may need to return a portion of their inheritance to pay the unanticipated expense.

The executor must also make certain that final state and federal taxes are paid for the deceased.

Asset Distribution

Once the assets that need to be probated have been determined and the debts of the estate paid, the executor will be responsible for determining the beneficiaries and distributing the assets pursuant to the terms of the will.

Self-Proving Wills

Self-proving wills are much less difficult to file in surrogate court than wills that do not contain self-proving provisions. Self-proving simply means that the will itself is enough to prove its validity, and no additional evidence or documentation is needed. The testator signs a self-proving will in the presence of two witnesses, who also sign the will, as well as attestation and notarization. There are typically other provisions relating to the mental capacity and age of the testator.

It may still be probated when a will is not self-proving, but the process is more difficult. Additional steps must be taken, such as having one of the witnesses that signed the will appear at the Surrogate’s Office to “prove” the validity of the will. Locating the witness is a task usually relegated to the executor. As time passes it often becomes more difficult to locate witnesses as they may have left the local area or passed away.

Contested Probate Matters

Sometimes during probate, matters become contested. It is important to have counsel that knows the law and the best way to proceed when this happens. One of the issues raised most often is the validity of the will. Reasons validity is contested include:

• Testator was not of sound mind or had diminished mental capacity when the will was executed
• Testator was under undue influence when the will was executed
• Testator did not execute the will in accordance with applicable law
• Fraud was used to trick the testator into signing the will

New Jersey Estate Administration & Probate Lawyer

Administering an estate in New Jersey can be a tedious process, and many people unfamiliar with the law have no idea where to begin. When our firm becomes involved, we are able to put our clients’ minds at rest as we know the steps to take to administer an estate pursuant to governing laws. Schedule a consultation with us to learn more about how the probate process works and how we can help you.