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Should You Name an Overseas Relative as Executor in New Jersey?

woman reading estate planning documents

A question that sometimes gets asked of estate planning attorneys is whether someone can name an overseas relative as the executor of their will.  In New Jersey, the short answer is yes. You can name an overseas relative as the executor of your will.  To that point, there are some major complications that choosing an overseas relative can create.  

Role of an Executor

An executor is the person who you choose to carry out the wishes in your will.  You will name them in your will and upon your passing they will be tasked with processing the will through probate and performing all of the other duties executors have.  Some of the executor’s duties can include:

  1. Paying off outstanding debts of the decedent;
  2. Paying the decedent’s funeral expenses;
  3. Taking inventory of the estate; and
  4. Distributing the assets in accordance with the will.

Due to the somewhat demanding nature of the executor’s job, it’s important that you name someone who you trust to be responsible, strong, and confident.  By choosing someone who fits the bill, you can be more confident that your wishes will be effectively followed exactly how you would have wanted.  

For some, their most trusted relatives and friends may all live overseas.  In these instances, it is possible to name one of those people as the executor for your will, but you should be aware of what exactly that will entail, and why this role can be especially difficult for someone who lives overseas.

Naming an Executor Who Lives Overseas

In New Jersey, there are no statutory requirements for who can be an executor.  So long as the executor is at least 18 years old and of sound mind, they could be an eligible executor in New Jersey.  If the named executor is not a New Jersey resident, then they must post a bond.  The purpose for requiring a bond is to deter the non-resident executor from committing fraud or stealing the estate’s assets.  The value of the bond can depend on several factors, including the size of the estate.  Usually, when working through a bond company, the executor would only have to put up a smaller percentage of the total bond value, but variables such as credit score and history of trustworthiness can cause the premium to be more or less expensive.

New Jersey does not have any requirements for where an executor must live.  Aside from being an adult of sound mental capacity, there are no other statutory requirements.  But you should be aware of the executor bond requirement if you are picking an out-of-state or overseas executor for your will.

Complications of Choosing an Overseas Executor

While choosing an overseas executor may be acceptable in New Jersey, it is often not without its complications.  From having to post a bond, to accessing safety deposit boxes, there are a few complications that can arise from having an overseas executor.  These complications can include, but are not limited to:

  1. In-person tasks;
  2. Lack of familiarity with the probate process; and
  3. Posting bond.

In-person Tasks

There are several tasks during the probate process that could require your executor to act in-person.  For example, if you have some valuable jewelry pieces locked away in a safe deposit box, your executor needs to be able to access the safe deposit box to adequately access and account for those assets.  While this is possible for someone who lives overseas to address this issue, it certainly may be inconvenient.  

In New Jersey, the probate process varies depending on the county.  Some counties may require the executor to appear in person to verify identity or to hand-deliver the will. The probate process could certainly take several months.  During those months, your executor may need to access a safe deposit box, report to the surrogate’s court, be on-site to take inventory, or go to a bank to open an estate account.  

There are many reasons why the executor may need to be in-person in New Jersey during the probate process.  The necessary appearances may be scattered throughout the whole process.  Having an overseas relative serve as your executor could cause the process to get more expensive and drag out longer than it needs to.

Lack of Familiarity

This obstacle can show itself in a number of ways.  Perhaps there is a language barrier between the executor and the employees of the surrogate’s court, or the executor may just be unaware of exactly what is needed.  The probate process can vary from county to county, state to state, and especially country to country. 

An overseas executor may have acted as an executor of a will in their home country and may, in turn, act improperly even though they believed they were following proper procedures. Probate can be a frustrating or confusing process for someone who is familiar with your hometown.  Choosing an overseas executor can only further complicate matters. We recommend speaking with an experienced estate planning attorney to help you weigh your options and understand why it may be better to choose one executor over another.

Posting Bond

As we mentioned earlier, New Jersey requires non-residents who are executors of a will to post a bond as a form of insurance for the other beneficiaries.  The price of the bond will vary depending on the size of the estate, and the percentage that one will have to pay will vary based on factors such as your credit score and history of truthfulness.  While prices may vary, one can expect to pay around .5% of the estate’s value for their bond.  

While this may not seem like a lot of money, for a $1 million estate, this price tag could exceed $5,000.  If the executor fulfills their duties properly and carries out the wishes as they are supposed to, then the bond money will ultimately be refunded to them.  If they do not act properly, then the bond may not be refunded.  

Per New Jersey law, the court may waive the bond requirement if good cause is shown.  That same statute also states that even when a person’s will waives the need for their executor to post the bond, the court may nevertheless require that a bond be posted.  

While this may be a frustrating obstacle, it is for good reason.  Beneficiaries rely heavily on an executor to act efficiently and dutifully.  Beneficiaries stand to inherit something of value and by requiring a bond to be posted, the courts can help ensure that the executor does not act irresponsibly or in a way that is detrimental to the beneficiaries of the will.  This need is amplified for executors who do not live in the U.S. because the court needs to cover their bases in the event the executor flees U.S. jurisdiction with the entire estate.

Possible Solutions

If you believe these complications outweigh the benefits of having an overseas relative act as the executor for your estate, there are some alternative solutions you can consider.  One such solution is to name a professional executor as the executor for your will.  

Naming a Professional Executor

A professional executor may be someone like an accountant or an attorney.  They are often well-versed in the nature of probate and thoroughly understand how to navigate through the process.  Many times, they can charge an hourly fee and also take a percentage of the estate.  While your estate would pay a similar percentage to any executor, even a relative, it is worth understanding exactly how much a professional executor would charge before you make this decision.

Naming a Local Person

Another solution is to name a trusted person who lives locally.  An executor does not have to be a relative.  An executor can be any responsible adult that you trust to act confidently and diligently when carrying out your wishes.  Perhaps a close friend or a devoted in-law could be a sufficient choice.  An executor can be any adult you choose, but it’s recommended that you choose someone who you believe is up to the task. 

We also suggest speaking with your choice beforehand to make sure they would be comfortable with taking on this role. In fact, regardless of who your choice for executor is, it is best to keep that person informed of your decision.  Make sure that the person understands what will be asked of them.  Encourage them to be honest about whether or not they want to take on this responsibility.  The role of executor is an important one.  Your choice should feel comfortable with the role, and confident that they will be able to act effectively when the time comes.

Setting Up a Trust

The last solution we will address is the option of avoiding probate as best as you can.  An effective way to do this would be to set up a living trust.  A living trust can be very effective in avoiding probate.  Unlike a will, the assets that are to be distributed through the trust do not have to pass through probate.  This can eliminate the need for an executor.  There are other aspects of an estate plan that may still need to be processed through the courts, such as if you named a guardian for your minor children, but the assets that you address in the trust will not have to pass through probate.  This will allow for a quick and efficient transfer of assets to your heirs, perhaps entirely eliminating the need to wait months to receive an inheritance, as is often the case with wills.

The ability to bypass probate is one of the most appealing benefits of a living trust.  While they usually require a slightly larger investment to create, the money saved by avoiding probate could make it worthwhile in the end.  

How Can Rosenblum Law Help?

At Rosenblum Law, our estate planning team has assisted countless families across a wide variety of situations over the years.  This experience can help you evaluate all of the options available to you, while carefully weighing the pros and cons of each.  We will be able to give you all of the information that you need to make the best decision for your estate plan.  For a free, no obligation consultation, give us a call at 888-235-902

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