Law Provides for voluntary discharge of personal representatives overseeing administration of estates by application to the Surrogate’s Court

Law Provides for voluntary discharge of personal representatives overseeing administration of estates by application to the Surrogate’s Court A-1955/SCS for S-1795 (Jones, Lampitt, Phoebus, Space/A.R. Bucco, Oroho) – New 

Under the law, following appointment, whenever a personal representative for an estate is unwilling or unable to perform the duties and powers of a personal representative, that personal representative could seek to be voluntarily discharged from the further performance of the duties and powers of the office by filing for voluntary discharge with the Surrogate’s Court of the county which granted the personal representative’s letters, or, if granted by the Superior Court, by filing for voluntary discharge with the Surrogate’s Office where the Surrogate is acting as deputy clerk of the Chancery Division, Probate Part for the Superior Court that issued the letters appointing the personal representative.  Any application for voluntary discharge would need to be consented to in a written, notarized document by each party in interest to the estate that is under the administration of the personal representative seeking to be discharged.

     The voluntary discharge filing, wherever made, would include: a completed Personal Representative Voluntary Discharge Form, as promulgated by the Administrative Office of the Courts, which contained contact information for the personal representative seeking to be discharged, and every party in interest to the estate (with a description of that party’s interest); accompanying proof that each party in interest consented to the discharge; and an application completed by another person to be appointed a successor personal representative for the estate.

     The personal representative filing for voluntary discharge would also be required to file a verified final account showing the true condition of the estate with a verified complaint in the Chancery Division, Probate Part for adjudication, unless every party in interest to the estate listed in the discharge form has consented in a written, notarized document to waiving this additional requirement and this consent accompanies the discharge form filed with the Surrogate’s Court or Surrogate’s Office, as applicable.

     Any sureties on the bond of a personal representative who makes a voluntary discharge filing could not be released until a final judgment has been rendered on the verified final account of the estate by the Chancery Division, Probate Part, unless this additional requirement for the final account was waived by the consent of every party in interest as explained above.  Notwithstanding any consent to waive the requirement of a verified final account of an estate, a creditor of an estate whose interest has not been satisfied may petition the Superior Court for an accounting of the estate. 

     A personal representative would be discharged from the further performance of the duties and powers of the office, and the personal representative’s letters revoked, upon the acceptance of the personal representative’s voluntary discharge filing by the Surrogate’s Court or Surrogate’s Office, as applicable; except the personal representative would still have to account for and pay over the money and assets with which the personal representative is chargeable by virtue of the office.  Additionally, the discharged personal representative would not be entitled to any statutory commissions relating to the performance of the duties and powers of the office.

The Senate unanimously passed S-1795 (Bucco)/A-1955 (Jones), which creates a process for the voluntary discharge of a personal representative overseeing the administration of estates. The bill allows personal representatives appointed by the surrogate's court to be discharged upon the filing of an application pending rules to be adopted by the New Jersey Supreme Court. The NJSBA opposed an earlier version of the proposed legislation because of inconsistencies in the bill's language. Members of the Real Property, Trust and Estate Law Section have been monitoring the amendments and providing commentary as the bill progressed. 

The initial bill permitted discharges for personal representatives whether appointed by the surrogate's court or the probate part of the superior court. It also required the Administrative Office of the Courts (AOC) to create a form to apply for discharge. The floor amendments that were voted on limited the scope of the bill to representatives in the surrogate's court and allowed a filing similar to what would have been required in the discharge form promulgated by the AOC. 

The amendments also provide for the replacement of a personal representative by either a successor or a substitute personal representative. The prior version only referenced a successor personal representative.

http://www.njlawjournal.com/id=1202789140817/CAPITOL-REPORT