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Probate refers to the legal process that occurs when a person passes away and the court is responsible for validating any existing will and overseeing the administration of the estate. There are two scenarios that will follow depending on whether or not the person who passed away had an estate plan in place at the time of their death:

• Died without a will: Assets are distributed through the state’s intestacy law
• Died with a will: An executor is appointed to gather the estate, pay off debts, and distribute the remainder of the assets per the will’s instructions

Going through the probate process can be complicated and stressful, particularly if someone is dealing with the recent passing of a close relative. Luckily, New Jersey has made probate within the state fairly straightforward and not overly time-consuming. 

This article will describe the basics of what someone should understand prior to dealing with probate, however anyone going through this process should consider contacting a qualified attorney who can guide them through everything, step-by-step.

Died Without a Will: Intestacy

When a person dies without a will, their assets will need to be distributed according to the state’s intestacy laws. These laws will determine who receives what portion of the estate based on their relation to the deceased.

The following chart summarizes how this distribution will work in New Jersey, depending on which relations of the deceased are still living at the time of their passing:

Your surviving family members	Who inherits your estate
Descendants (such as children) but no spouse	Your descendants get everything
Spouse but no descendants or parents	Your spouse gets everything
Spouse and descendants from you and that spouse, and the spouse has no other descendants	Your spouse gets everything
Spouse and descendants from you and that spouse, and the surviving spouse has other descendants from other relationships	Your spouse gets the first 25% of the estate (minimum of $50,000 and maximum of $200,000) plus ½ of the remaining estate, and your descendants get the remainder
Spouse and descendants from you and someone other than that spouse	Your spouse gets the first 25% of the estate (minimum of $50,000 and maximum of $200,000) plus ½ of the remaining estate, and all of your descendants inherit the remainder
Spouse and parents	Your spouse gets first 25% of estate (minimum of $50,000 and maximum of $200,000) plus ¾ of the remaining estate, and your parents get the remainder
Parents but no spouse or descendants	Your parents get everything
Siblings but no spouse, descendants, or parents	Your siblings get everything

This situation can lead to a great deal of confusion, and often can result in assets being distributed to people who were not intended to receive anything from the estate. It may also be necessary to sell off certain property in order for the intestate beneficiaries to receive their portion of the estate.

Given that most people don’t pass away with an estate that is mostly cash, and that most people have a specific idea of who they would like to benefit from their estate and in what portion, it is always best to construct a will that will be used in place of the intestacy laws. 

Anyone thinking about creating a will should consult with an experienced attorney who can review their entire estate and family dynamic to develop a plan that will best serve the client’s wishes.

Died With a WIll: Executor Steps In

When someone has made the effort to create an estate plan that includes a last will and testament, things will go more smoothly for their family. The last will and testament will name an executor, who is the person responsible for carrying out the instructions contained in the will.

The first step in this process is to present a valid original copy of the will, along with the death certificate of the deceased, to the surrogate court for the county in which the deceased has passed. The court will review the documents for validity, and then officially appoint the executor as named in the will (except for the extremely rare circumstance where the court overturns the testator’s choice of executor), empowering them to follow the instructions in the will.

So what does the executor have to do? It depends on what’s written in the will, but usually they will do at least some or all of the following:

• Pay off outstanding debts of the deceased
• Pay any funeral and last expenses
• Create any necessary trusts for certain beneficiaries named in the will
• Distribute the assets in the will

Depending on what is in the estate and who will be receiving it, the distribution of assets can be an easy or complicated process. For example, one common responsibility of the executor is to sell the deceased’s home so that the proceeds can be split amongst the beneficiaries, typically their children. This can mean clearing out the house, having an estate sale, and hiring a realtor and an attorney for the sale and closing of the property.

Sound like a lot of work? It often can be. Fortunately, the state has recognized this and enacted laws entitling executors to a commission, which is based upon the size of the estate they are administering. 

Under N.J.S.A. §§ 3B:18-13 and 3B:18-14, these commissions generally include 6% of the income received by the estate (not including non-probate assets) plus:

• 5% on the first $200,000 of the gross estate; 
• 3.5% on the excess over $200,000 up to to $1 million; and
• 2% on the excess above $1 million.

The executor is entitled to collect these commissions, or other payment if specified in the will itself, but it should be noted that they are not required to take any payment. Executors are usually close family members of the deceased, and in some situations they may decide to just take their share of the estate and not an additional commission, to avoid causing any strife within the family.

If you’ve been named executor of a will and you are unsure of how to proceed, it’s best to speak with an experienced attorney who can work with you to administer the estate and ensure that everything goes quickly and smoothly.

Avoiding Probate

Many people choose to create an estate plan designed to avoid probate because of the apparent complexity of dealing with this process. Usually, they will cite reasons to avoid probate such as:

• Delays in administering the estate
• Public nature of the probate process
• Costs associated with probate

While in some cases these concerns may be warranted, in New Jersey the probate process has been streamlined so costs remain low and things move quickly. Furthermore, many assets will avoid the probate process entirely, because these assets pass automatically to a beneficiary that was named at the time they were set up. These include:

• Property with a right of survivorship
• Most life insurance policies
• Certain investment or retirement accounts

Ultimately, anyone who is determined to avoid probate should speak with an attorney about creating a living trust. A living trust holds the assets of its creator in a separate entity and contains instructions on how to distribute those assets upon the creator’s death. Anything in the trust at the time of death will avoid probate. 

However, it should be noted that anything not in the trust at the time of death will go into a pour-over will, which serves as a catchall to make sure that nothing in the estate is missed. This pour-over will is going to need to go through the probate process, regardless of whether there is a living trust.

Should I Hire an Attorney?

Estate planning can sometimes feel overwhelming, especially when someone is dealing with the probate process while having to manage the stress of a recently deceased relative. Whether you are considering your own estate plan or dealing with the estate plan of someone else, it’s always best to consult with an experienced probate attorney before making any decisions.

At Rosenblum Law, our attorneys will speak with you to gain an understanding of your situation and present you with options for the best path forward. Call us today to get started with a free consultation.