Intestacy
[Someone died and no Will or Will not done correct and not admitted to
probate]
Intestacy is the condition of the estate of a person who dies
owning property greater than the sum of his or her enforceable debts and
funeral expenses without having made a valid will or other binding
declaration; alternatively where such a will or declaration has been made, but
only applies to part of the estate, the remaining estate forms the "Intestate
Estate". Intestacy law, also
referred to as the law of descent and
distribution or intestate succession
statutes, refers to the body of common law that determines who is entitled to the property from the
estate under the rules of inheritance. See http://en.wikipedia.org/wiki/Intestacy
More
details at
http://www.njlaws.com/litigation_involving_intestacy.html
INTESTACY
The estate of every NJ resident must be settled with
the County Surrogate's Court unless the deceased owned no assets individually
in New Jersey. Except in that limited circumstance, an estate must be presented
to the County Surrogate before disbursement of the deceased's assets can occur.
This estate settlement requirement applies whether the person died with or
without a will. See http://www.co.bergen.nj.us/Surrogate/BCSC_Intest.htm
The estate of a person who dies without a will is
called an "intestate" estate. The Administrator's responsibilities include
notifying the deceased's next of kin of his/her death, assembling the estate's
assets and disbursing those assets according to law. The applicant need not be
an attorney. In fact, most applicants complete the entire Surrogate's Court
process without the need for an attorney. However, if you feel more comfortable
bringing an attorney to the Surrogate's Court, you may certainly do so.
To apply to be the Administrator of an intestate
estate, a person must bring the following to the County Surrogate's Court: (1)
The original death certificate with raised seal; (2) An estimate of the gross
value (but not an item-by-item description) of the estate covering all real
estate and non-real estate (personal) assets; (3) The complete names and
addresses of the deceased's next of kin; (4) A blank New Jersey check or cash
for fees-the average fees, excluding bonding costs, are $150-$250);
(5) A formal, written Renunciation of the right to
serve as the estate's Administrator signed (in the presence of a Notary Public)
by every person, if any, who has statutory preference over the applicant to
serve as the estate's Administrator.
If all the children Will not sign a renunciation, an
expensive Complaint and Order to Show Cause will have to be filed. At the
Superior Court hearing a beneficiary will have to convince the Judge to appoint
them as the Administrator. Legal fees and court costs over $3,000. They will
then have to pay for a bond usually costing over $1,000. Then later usually a
Formal Accounting has to be filed. All
this could be avoided with a proper Will prepared by an Estate Planning
Attorney usually costing $300-$600 each.
As a matter of law, the family members of the
deceased have the first right to serve as the Administrator, in the following
order of preference: spouse, children, parents, brothers and sisters. Should no
family member seek appointment, then a creditor or anyone else may do so. A
person who renounces the right to serve as Administrator may do so without
disclaiming the right to receive any of the deceased's assets. (In contrast, by
having a will, a person can choose the individual(s) he/she wishes to take
charge and distribute his/her estate's assets (the "Executor(s)").
Source: See http://www.co.bergen.nj.us/Surrogate/BCSC_Intest.htm
Once the above-described five items have been
received, the Surrogate will appoint the applicant as the Administrator of the
intestate estate. In most cases, the Administrator must be bonded until the
estate has been properly assembled and distributed. This bonding fee is in
addition to the $150-250 in average fees paid by the person seeking to be
approved as Administrator. Bonding is required to protect the creditors and
beneficiaries of the estate from the possibility that the Administrator will
misuse his/her authority to their financial detriment.
There are, however, exceptions to the bonding
requirement for intestate estates. If the deceased has a surviving spouse and
no surviving parent or child, the surviving spouse need not post a bond. If the
deceased left a surviving spouse and a surviving parent or child, then there
will be no bond required of the surviving spouse for the first $50,000 of the
estate and one-half of the remainder. Otherwise, the cost of bonding is fixed
on the value of the estate. Bond premiums are currently $100 per year, if the
estate is worth $18,000 or less; $525 per year, if the estate is worth $100,000
or less. (By way of comparison, a person can have a simple Will drafted by an
attorney for $250-$350 and the will can state that the person taking charge of
the estate's assets, the "Executor", shall serve without any bond.)
After the Administrator has been appointed and
bonded, the Surrogate's Court will then issue Surrogate's Certificates (also
known as Letters of Administration) that are used to assemble and transfer the
intestate's assets. It is recommended that you order several copies of these
Certificates, especially if the assets are being held by several banks,
brokerage firms, pension plans and insurance companies. They will also be
needed to sell or transfer all real estate assets. Along with the Certificates,
a General Information brochure regarding the New Jersey Inheritance Tax is sent
by the Surrogate's Court to the Administrator by mail within 5-7 business days
of his/her appointment.
Administration of the estate cannot be first
completed until several additional steps are taken. First, the Administrator
must gather the assets, pay the just debts and taxes, and then distribute the
balance of the estate's assets in accordance with the law. Second, once all
assets of the estate have been disbursed, the Administrator must have each
recipient sign a Refunding Bond. The Administrator should also have the
recipient(s) sign a Release at the same time. The Surrogate's Court provides,
without charge, a form combining a Release and Refunding Bond. The executed
Release and Refunding Bond (signed by the recipient in the presence of a Notary
Public) should then be filed with the Surrogate's Court at a cost of $10.00 per
Bond.
Source: See http://www.co.bergen.nj.us/Surrogate/BCSC_Intest.htm
The laws of the State of
New Jersey provide for the assets of the intestate estate to be distributed to
the next of kin by "intestate succession" as follows:
I. If you die leaving a spouse but no children, grandchildren or
parents, the surviving spouse receives all.
II. If you die leaving a spouse and children who are also the children
of the spouse, the spouse receives the first $50,000 plus one-half of the
balance of the estate. The children receive the other one-half of the balance
divided equally amongst them. If one of your children dies leaving children
then your grandchildren take their deceased's parent's share. However, if all
of your children have died before you then all of your grandchildren will share
equally.
III. If you die leaving a spouse and children who are not also the
children of that spouse, the spouse receives one-half, the children receive
one-half divided equally and, if applicable, the grandchildren take their
deceased parent's share unless all the children are deceased. Should that
occur, all the grandchildren share equally.
IV. If you die leaving children but no spouse, the children receive
all divided equally among them. If there are grandchildren, they take their
deceased parent's share, unless all the children are deceased. In that event,
all the grandchildren share equally.
V. If you die leaving a spouse but no children or grandchildren, and
if your mother or father is still living, your spouse receives the first
$50,000 of your estate plus one-half of the balance and your parents (or
parent, if only one survives you) receives the remainder.
VI. If you die leaving no spouse, no children, no grandchildren, no
grandchildren and one or both of you parents survive you, the surviving parent
or parents take all divided equally. If no parent survives, then your surviving
brothers and sisters receive all divided equally.
VII. If you die leaving no surviving spouse, children, grandchildren,
parents, brothers or sisters, then the estate will be divided equally among
those people surviving you in the closest degree of kinship (starting with
nieces and nephews) until an heir is found if possible.
VIII. If you die leaving no surviving next of kin without a Will, your
estate assets escheat to the State of New Jersey.
In a related manner, in addition to the appointment
of an Administrator for an intestate estate, if the count resident dies leaving
a child under 18 years of age and there is no other legal guardian for that
minor child, then the County Surrogate must appoint that minor child's
guardian. The procedure for this appointment is similar to the application and
bonding process for an Administrator in the sense that the law gives certain
family members priority to serve as guardian of the deceased's minor child,
while allowing those lower on the priority ladder to serve as long as the
appropriate written renunciations have been received by the Surrogate. (In
contrast, if the person who died had a will, the deceased could have designated
the guardian(s) of his/her minor child in the will and this designation would
have been binding upon the Surrogate and all others.
Source: See http://www.co.bergen.nj.us/Surrogate/BCSC_Intest.htm Copyright 2018
Vercammen Law
