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Probate is the process by which a will is entered into the court system, debts and assets are gathered, and the estate is distributed among creditors and heirs. With most types of assets, probate is necessary to ensure that the assets are distributed in accordance with the decedent’s wishes. This is a complex process with many associated laws and regulations.
A Rosenblum Law probate attorney can help navigate the probate process, avoid delays in probate, and ensure assets are distributed correctly. Contact us today for a free consultation, or keep reading for more information about the probate process.
What is Probate?
Probate is the legal process by which a will is validated and assets are distributed. According to Section 3B:3-18 of the New Jersey State Code, to be effective in transferring property or naming an executor, a will must be admitted to probate so that all assets are distributed appropriately. Most estates must pass through probate in New Jersey if the deceased was a resident of the state.
Step-by-Step Process to Probate a Will in New Jersey
The probate process is the same in most cases in which a will is available and uncontested. When a will is not available or is contested, the process varies somewhat. Here are the basic steps.
1. File the Will
A surrogate’s court is responsible for hearing probate matters. Each county’s superior court has a surrogate’s court that may be located within the main courthouse or in an annexed building at another location. According to Section 3B:3-17 of the New Jersey State Code, the surrogate’s court is responsible for taking depositions to wills, admitting wills to probate, and granting letters of testamentary or letters of administration with the will annexed.
There is no deadline for filing a will with the surrogate’s court, but the will cannot be admitted to probate sooner than 10 days after the resident is deceased. However, the complaint and other papers related to probate may be filed before the will is admitted to probate.
Unless the will is self-proved by its execution, there must be a sworn statement by at least one of the witnesses to the will to validate it. Alternatively, this person may appear in court.
2. Appoint an Executor/Administrator
The executor or administrator of the will must gather the deceased’s assets and keep them safe for the heirs. They also must pay reasonable debts and taxes, and distribute the remaining assets to the heirs according to the will. When no will exists, distribution is made according to state law.
If the will names an executor, and that person is willing to serve as such, the surrogate court will officially appoint that person. If no executor is named in the will, there is no will, or the executor is unwilling to serve as such, the court will appoint an administrator. Typically the decedent’s spouse is named as an administrator in these cases if they are willing to serve as such. If they are not, one of the children of the deceased can serve as administrator. If all family members decline, any person willing to take on the job may do so after 40 days.
3. Gather Assets and Debts
The executor or administrator identifies assets and manages the estate. Typically, a bank account is opened for the estate, into which assets are placed as they are discovered. If all assets are named in the will, this is an easy task. However, it is common for assets to be added to an estate after a will has been executed.
Once all assets have been identified and gathered, the executor or administrator must resolve outstanding debts and claims. They can petition the court for a letter limiting creditors, which gives creditors nine months to come forward with debts to be paid out of the estate.
If debts are more than the estate’s value, the debts must be paid in a particular order. Final expenses are to be paid first, then costs of probate, taxes, and debts from the last illness, in that order. Additional laws govern the order in which to pay other debts. An attorney can help prioritize debts.
4. Pay Taxes and Administrative Costs
Once debts have been paid, the estate must pay taxes and administrative costs. New Jersey no longer has an estate tax, but it does have an inheritance tax that is charged per beneficiary.
The decedent’s spouse, children, grandchildren, and parents are exempt from the inheritance tax. Siblings, spouses of descendants, or civil union partners of descendants must pay an inheritance tax based on the amount of the inheritance. The first $25,000 of the inheritance is not taxed. The rest of the inheritance is taxed at 11 to 16%, based on the size of the inheritance.
There is a federal estate tax with a threshold of $13.6 million. If the estate’s gross value is more than this amount, a federal estate tax return must be filed and federal estate taxes paid before the remainder of the assets can be disbursed.
Legal fees, court costs, and executor fees are also paid at this time. Legal fees include any fees to a probate attorney hired for the purpose of going through probate. The executor or administrator of the estate is also allowed a commission or fee for their services. Section 3B:18-13 and 14 states that the executor can take a commission of 6% of the income taken into the estate.
5. Distribute Assets
Once all debts, taxes, and probate costs are paid, the remainder of the assets are distributed among beneficiaries in accordance with the terms of the will. Any assets not named in the will also must be distributed in accordance with state law. For example, securities and stocks other than those named in the will are distributed to the beneficiaries designated to receive securities and stocks. Some types of assets are considered “residue” and must be divided among beneficiaries in percentages that reflect the intent of the will.
If someone contests the will or the executor or administrator’s handling of assets, a complaint must be filed with the superior court. The surrogate court cannot oversee estates where the will is being contested. At this point, at least one of the witnesses to the will must come forward and testify as to its validity. The superior court will hear evidence on both sides and make a determination.
Section 3B:3-30 allows the widow or children of the deceased to petition the superior court for maintenance to be paid out of the estate during the time the will is being contested.
6. Close the Estate
To close the estate, the executor or administrator must submit an accounting, including debts and taxes paid, and how the remaining assets will be distributed. If there are no disputes among the heirs, the probate process is finalized and the executor is discharged. If the will is contested, the contesting party must file a complaint with the Superior Court.
How a Probate Attorney Can Help in New Jersey
A probate attorney can help in a number of ways.
Guiding the Executor
Being the executor or administrator of an estate involves a complex web of responsibilities. An experienced New Jersey probate lawyer can guide the executor and assist them in preparing filings for the court.
The executor may face disputes and conflicts in dividing assets among beneficiaries. A probate attorney can help the executor handle these disputes and prevent conflicts through mediation and negotiations.
Managing Complex Estates
Large estates with multiple assets are difficult to execute, especially if some of the assets are not listed in the will. A probate attorney can deal with business holdings, trusts, and/or foreign property much easier than the average executor or administrator can on their own.
Handling Will Contests
As mentioned above, a probate attorney can represent a beneficiary in will disputes. This includes drafting the complaint and making the appropriate filings to have the disputed will filed with superior court.
Probate Without a Will in New Jersey
When there is no will, it is said that the individual died intestate. Intestate succession laws in New Jersey then apply. Because there is no will, there is no named executor, so an administrator will be appointed. The administrator’s duty is to gather all of the assets of the deceased, pay all debts, taxes, and court costs, and distribute the remainder of the assets according to state law.
For example, if someone dies with no spouse but has children, the children inherit everything in equal shares. If someone dies with a spouse but no children or living parents, the spouse gets everything. If someone dies with a spouse and children from that spouse, and the spouse has no children from another relationship, the spouse gets everything.
In some cases, the spouse gets the first 25% of the intestate assets plus half the balance, with the remainder going to descendants, parents, or other relatives. Intestate succession laws continue in this fashion, and are designed to ensure that the decedent’s intestate assets go to a beneficiary. It is rare that intestate assets are unclaimed.
The Role of the Surrogate’s Court in New Jersey
The surrogate’s court admits wills to probate, oversees the paying of debts and distribution of assets, and issues letters of testamentary or letters of administration to the executor or administrator so that they may carry out their duties.
If a will is disputed, a complaint must be filed with the superior court with the help of a probate attorney. Superior court appeals must be filed within 40 days of the original judgment.
How Long Does the Probate Process Take in New Jersey?
The probate process can take up to a year or longer, even if there is no dispute. Creditors are given nine months to come forward with debts to be paid out of the deceased’s assets. Once that period has lapsed and all debts, taxes, and court costs are paid, the executor or administrator must determine how to disburse the remaining assets. The accounting required to be filed with the Surrogate’s Court can also take time to prepare.
FAQs
New Jersey does not have a deadline for filing a will. It is best to file the will as quickly as possible to avoid delays in probate, but it cannot be filed sooner than 10 days after the decedent’s death.
It is possible to probate a will in New Jersey without a lawyer, but this is not recommended. An attorney can guide the executor in their duties to avoid disputes, delays, procedural errors, and accusations of misconduct.
If someone contests the will, they can file a complaint with the superior court, which will take over probate for the case. New Jersey law requires that at least one of the witnesses who signed the original will testify as to its validity if there is a dispute. If none of the witnesses is able to testify, a sworn statement may be sufficient.
What happens next depends on the argument for disputing the will. If a newer will or writing intended to be a will is produced, the judge must determine which document should be used in distribution of assets.
The executor is responsible for gathering all of the deceased’s assets; paying all debts, taxes, and court costs; and distributing the remaining assets to beneficiaries. The executor must file an accounting of how all assets were disposed of.
There are some assets that do not need to go through probate. If these assets make up the whole of the estate, probate may not be necessary. For example, if all property was owned in joint tenancy in common, the joint owner automatically inherits the property. Trusts, life insurance policies, and retirement accounts with named beneficiaries do not go through probate either.
If a will is lost or damaged, it is void, and intestate succession laws apply.
Federal estate taxes must be paid before the remainder of assets are distributed to beneficiaries. However, the estate must be worth more than $13 million to necessitate paying federal estate tax. New Jersey does not have an estate tax.
If there is no will, an administrator will be appointed rather than an executor. The administrator will gather assets, pay debts, taxes, and court costs, and distribute the remaining assets according to intestate succession laws.
The easiest way to expedite the probate process is to thoroughly investigate creditors who may have a claim to part of the estate rather than waiting for them to come forward. If all of the debts are paid before the nine-month period for creditors to come forward, it may be possible to probate the will faster.
Contact Rosenblum Law Today
As you can see, the probate process can be rather complicated. It is best to have an experienced probate attorney guide you through the process. Rosenblum Law probate attorneys can ensure a smooth and efficient process. Our attorneys are experienced in disputes, handling debts, and guiding executors so that probate delays are minimal. Contact us today to schedule your free consultation.
Last updated: Oct 10, 2024
