How we handle Probate and what we advise to Clients

How we handle Probate and what we advise to Clients

Probate is the process where after death the instructions of the Will are carried out. Will is admitted to “Probate” in the County Surrogate. In some states, this is called Register of Wills. Some people refer to the Surrogate as the Will Clerk. Upon the death of the Testator (maker of the Will), the Probate procedure can begin. This is the legal process, which establishes the genuineness of the Will. It is done by the Surrogate in the county where the Testator resided at the time of death.  

       FILING A PROBATE APPLICATION 

     Upon the death of a person, a Probate proceeding may be commenced by offering the decedent's (the dead person's) last Will for Probate in the Surrogate's Court of the county in which the decedent was domiciled at death.  Generally, the Executor nominated in the Will brings the proceeding by filing a verified application with the Court.

 

     When the applicant files the original Will for Probate, the applicant must also file a death certificate (an original with a raised seal). A filing fee of approximately $150 must be paid. Once the Will, application and death certificate are filed, the Surrogate will review the papers, and if there are no irregularities or objections, admit the Will to Probate. Although New Jersey law prohibits admission of a Will to Probate within 10 days of the testator's death, an applicant may submit the application prior to expiration of the 10-day period. If the Will is filed after the 10-day waiting period, many Surrogates will issue a judgment for Probate contemporaneously with the filing of the Probate papers.

    The Probate application will usually contain the following information:

1. the applicant's residence;


2. the name, domicile and date of death of the decedent;


3. the names and addresses of the decedent's spouse, heirs (those entitled to take under the laws of interstate succession), and any person named to serve as Executor;


4. the ages of any minor heirs; and


5. the names of the testator's children when the Will was made and the names of children born and adopted after the Will was made, or their children, if any.

To minimize time spent in the Surrogate office, it is recommended, and in some states required, that before an Executor submits the Will for Probate the executor’s attorney or executor sends to the Surrogate Court:

1) a "data sheet" (referred to in some counties as an "information sheet" or a "fact sheet") containing the information needed by the Surrogate to complete the application;

2) a copy of the Will; and

3) a copy of the death certificate.

Qualifying the Executor

     Once the Will is admitted to Probate, the Court will issue Letters Testamentary to an Executor who has properly qualified to serve. An Executor named in a Will qualifies to serve by filing a form affidavit in which the Executor agrees to perform his or her duties. The nominated Executor must also provide a Power of Attorney to the Surrogate empowering the Surrogate to accept service of process of claims against the estate. Once the Executor qualifies, the Court then issues letters testamentary.

Mailing Probate Notices

After a Will is admitted to Probate in NJ, the Executor’s Attorney or Executor must mail within 60 days a notice of Probate to the decedent's spouse, heirs and all beneficiaries under the Will. The notice of Probate should contain the executor's name and address, place and date that the Will was Probated, and an offer to furnish a copy of the Will upon request. Within 10 days of mailing the notice the Executor’s Attorney or Executor should file proof of service of the notice with the Surrogate's Court. 

      Unlike in some other states, the Surrogate's filing fee in New Jersey is the same regardless of the size of the estate. See Zimiles "Probate is not a Dirty word in New Jersey" N.J. Lawyer pg. 14 ( July/August 1992)

Frequently Asked Probate Questions and Answers

How does the Executor begin the Probate procedure?

     The Executor or personal representative can be appointed and the Will admitted to Probate in most cases by going to the Surrogate's Court with the original Will, certified death certificate, and, if the Will is not self-proven, at least one of the witnesses who signed the Will must prove the signature on the Will.

How is an Administrator selected when there is no Will?

     When there is no Will, an administrator, or personal representative is appointed by the Surrogate's Court. The surviving spouse has the first right to apply for the position of administrator; however, any heir of the decedent may be appointed. When one of several heirs seeks to be appointed administrator, all other heirs must renounce their right to be appointed administrator. Otherwise a more complicated process in the Superior Court must be filed. In most cases if there is not a Will, a surety bond must be furnished to cover the value of the real and personal property in the estate.

What kind of information should the Executor collect?

The decedent's personal representative should make a list of all of the next of kin of the person who died, along with their degree of relationship, addresses and ages.

What if the Will is not properly executed?

     The Surrogate will advise the personal representative as to the proper procedure in order to allow the Will to be admitted to Probate. This procedure normally involves a formal hearing before a Judge of the Superior Court.

Are unpaid inheritance taxes a lien on property?

     Yes, to sell real estate, in NJ the attorney for the Estate will need to obtain "tax waivers" from the NJ State Transfer Inheritance 'Tax Bureau, and the waivers must be filed with the County Clerk in the county where the land is located. Land held by husband and wife as "tenants by the entirety" need not be reported and may be transferred without a waiver. Other property may be subject to a lien for unpaid inheritance taxes such as bank accounts and certificates of deposit.

     There is also an unlimited federal marital deduction, which means unlimited amounts of property can be transferred between spouses without estate of gift taxes.

How many Surrogate's Certificates ("Shorts") Will I need?

     A list of all of the assets of the estate should also be prepared to help determine the number of Surrogate's Certificates that must be issued by the Probate clerk in the Surrogate's Office.

When is the Will admitted to Probate?

     After all the proper forms are filed with the Probate clerk, the clerk will prepare a judgment, which admits the Will to Probate. The Surrogate then signs the judgment and issues "Letters Testamentary."

What are Surrogate's Certificates used for?

     Surrogate's Certificates act as evidence of the authority of the personal representative ( Executor, Administrator, Trustee ) to act. These certificates are necessary to accomplish certain tasks such as transferring stocks, closing bank accounts, etc.

Is it necessary to send copies of the Will to the beneficiaries?

     From the time the Will is probated, the Executer has 60 days to mail all beneficiaries a notice that they can be provided with a copy of the Will, along with a notice giving the specific date and place the Will was entered into Probate. See Zimiles "Probate is not a Dirty word in New Jersey" N.J. Lawyer supra

Is an attorney necessary in estate administration when there is no Will?

     As a practical matter, it is very difficult for a nonlawyer to correctly follow the required procedures in administering an estate without the assistance of an attorney. The personal representative selects the attorney for the estate. 

Where does the Executor/Administrator obtain the funds to pay debts?

     The Executor may, in most cases, withdraw up to one-half of the funds in the decedent's New Jersey bank accounts. Generally, the Executor should open an estate checking account, which can be used to receive and disburse funds.

Is the Executor or Administrator entitled to compensation?

     In New Jersey an Executor or Administrator is entitled to corpus commissions of 5% of the first $200,000.00 of estate assets subject to administration, 3-1/2% on the excess over $200,000.00 up to $1,000,000.00 and 2% or such other percentage as the Court may determine on the excess over $1,000,000.00. Fees depend on the state of domicile.

      A commission is taxed as income and must be put on the executor’s income tax return. I often recommend executors NOT take a commission in easy cases because it often causes anger and problems with the beneficiaries.

What about a safe deposit box in the name of the decedent?

     Individuals sometimes keep their Will in their safe deposit box. The personal representative is permitted to remove the original Will, as well as a Deed to a cemetery plot and certain life insurance policies from the decedent's safe deposit box before Probate.

How does the estate Executor handle joint bank accounts or certificates of deposit?

     Certain bank accounts and certificates may be owned with rights of survivorship, which means that upon the death of one party to the account, the surviving party (or parties) becomes the sole owner (or owners). If the decedent maintained such an account, the survivor Will be able to withdraw one half of the funds in the account by giving the bank a Death Certificate and without the need to provide anything from the Surrogate. The other half will not be released until the NJ Transfer Inheritance Tax Bureau issues a tax waiver, normally after the tax is paid and the return is filed. Again, this varies from state to state.

Is all this paperwork necessary even on small estates?

     There is a procedure whereby the assets of small estates can be transferred to the surviving spouse without the necessity of administration. The spouse files an affidavit stating, among other things, that the decedent had no Will and that all of the real and personal assets of the decedent do not exceed $10,000.

How do I prove that legacies were paid?

     The Executor has a duty to pay the legacies or distribute shares as provided for under the Will; however, when he /she does so, he/she must take a Release and Refunding Bond from the person taking the share. The Refunding Bond is then forwarded to the Surrogate for filing and recording.

What is a Disclaimer- When a beneficiary renounces their right to inherit

       A disclaimer is a formal legal process by which a beneficiary (heir) states that they do not wish to accept a bequest under a Will. It is also called a renunciation. For example, if you are named as a beneficiary under your uncle's Will and your uncle dies and you are in the midst of a major lawsuit you might prefer not to accept the inheritance and instead let it pass to another family member. To do this you must meet the legal requirements of a disclaimer in your state. This may consist of filing a formal notice with the executor (person in charge of your uncle's Will) and the court. To qualify as a disclaimer for federal estate tax purposes (so that your disclaimer won't be treated as a gift made by you) it must be done within nine months of your uncle's death. Importantly, you cannot accept any benefit from the property you are disclaiming. For example, you cannot cash a dividend check on the stock your uncle left you and then disclaim. Disclaimers are a powerful estate tax planning tool as well. More info at https://law.justia.com/codes/new-jersey/2019/title-3b/section-3b-9-6/