This article is a brief review of the Probate process in New Jersey explained by a NJ Probate Lawyer on How to Get through Probate Fast.
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Is Probate always needed in New Jersey?
Probate in New Jersey is the court-supervised process that “MAY” be required after someone dies. It is possible to avoid probate in some cases. But, in general probate gives someone like the surviving spouse, children of the deceased or other close family member the legal authority to gather all of the deceased person’s (The legal term for the person who passed away is decedent.) assets, pay the decedent’s debts and taxes, and eventually transfer the decedent’s assets to the people who are supposed to inherit them. As earlier stated probate in New Jersey isn’t always required and a simplified process may be available for small estates that are considered uncomplicated estates.
When it comes to administering the estate of a loved one this may be the worse time of your life and you may very well not want to do anything, but when the probate process is required can be as simple as six steps.
- Open the estate by filing to be the executor under the will or personal representative, if there was not a will, of the estate.
- Give notice to the possible heirs and beneficiaries.
- The Executor/Personal Representative must then give notice to creditors of the estate and take an inventory of the estate’s property.
- All expenses related to the estate & funeral, along with debts and taxes must be paid from the estate before beneficiaries receive anything.
- The property of the estate is then distributed as required by the will or under the New Jersey laws of intestacy (Intestacy is a fancy way of saying the decedent did not have a will).
- Close the estate.
Avoiding Probate in New Jersey or Limited Probate in New Jersey
New Jersey Probate refers to the process where the decedent’s debts are paid and the decedent’s property not otherwise distributed by law is transferred to heirs and beneficiaries. Things like life insurance that name a beneficiary or a joint account do not need to go through probate because they pass without going through probate.
Common Items that do not need to be Probated include:
Assets for which the decedent designated a beneficiary outside of the will for example, Pay of Death saving or checking accounts, IRAs, 401(k) plans, life insurance proceeds and pensions and Assets held in a revocable living trust
Assets the decedent owned with someone else by tenancy by the entirety in the case of spouses, tenants in common for joint tenancy which both pass automatically to the surviving owner.
If the decedent did not leave a will or have valuable property over $20,000, surviving family members can take advantage of New Jersey’s simplified probate procedures. The streamlined probate is quicker and cheaper than regular probate when it is available to be used.
If the value of all of the decedent’s is under $20,000, and the surviving spouse or domestic partner is entitled to it without going through probate (see NJ Rev Stat § 3B:10-3).
If there is no surviving spouse or domestic partner and the value of all of the assets doesn’t exceed $20,000 then ONE heir, with the written consent of the other heirs, can file an affidavit (an affidavit is a sworn statement) with the court to receive all the assets and divide the assets with the other heirs. (see NJ Rev Stat § 3B:10-4)
1. Open the estate by filing to be the executor under the will or personal representative, if there was not a will, of the estate.
If the decedent had a will, and the decedent had property subject to probate such as a house where the decedent was the only person on the deed, the probate process begins when the executor, who was nominated by the decedent’s last will, presents the will for probate in a courthouse in the county where the decedent lived, or owned property. If there is no will, someone must ask the court to appoint him or her as the Personal Representative to administrator the decedent’s estate. Normally, this is the spouse or an adult child of the decedent or even a close personal friend. Once appointed by the court, the executor or personal representative becomes the legal representative of the estate and is allowed to act on behalf of the estate.
The first step is to admit the will to probate at the surrogate’s office so they can be appointed the executor or; if there is no will, appoint a personal representative of the estate.
The court may require the executor / personal representative to get a bond, which is basically insurance so that the assets on the estate are protected from theft. Many wills will state that the executor does not need to provide a bond.
2. Give notice to the possible heirs and beneficiaries
All of the decedent’s heirs and beneficiaries have the option to object to the petition. If this happens the probate process can be bogged down for years. However normally notifying potential heirs and beneficiaries is only a formality unless an heir is being cut out of the will, then issues could arise.
A possible heir would be anyone that would take under New Jersey intestacy laws. Children of the deceased and the decedent’s spouse. If neither of these exists, then more distant relatives such as siblings, parents and other relatives may need to be notified. If you ever have any questions, consult a New Jersey Probate attorney.
3. The Executor/Personal Representative must then give notice to creditors of the estate and take an inventory of the estate’s property.
The executor/personal representative then sends written notice to all creditors of the estate based upon New Jersey state law. Any creditor who wishes to make a claim against the estate’s assets must do so within 9 months under New Jersey law.
The 9 months begins on the date of debtor’s death. The executor/personal representative cannot distribute assets to beneficiaries until all claims are satisfied. If she does, she may be personally liable to the creditor for the debt. So, when people wonder how long probate takes, it takes at least 9 months as long as the executor/personal representative does not want to be liable to any creditors she doesn’t know about.
An inventory of all of the decedent’s property, including personal property, real estate, stocks, bonds, business interests is taken. These items may need to be sold, managed or reinvested, and that also becomes a duty for the executor/personal representative.
4. All expenses related to the estate & funeral, along with debts and taxes must be paid from the estate before beneficiaries receive anything.
The executor/personal representative must determine which creditor’s claims are legitimate that should be paid. Believe it or not people try to scam estates when people die. In some instances, the executor/personal representative has to sell estate assets to satisfy the decedent’s obligations even when those assets are named in the decedent’s will.
5. The property of the estate is then distributed as required by the will or under the New Jersey laws of intestacy (Intestacy in New Jersey is a fancy way of saying the decedent did not have a will).
Following the 9-month waiting period to allow creditors to file claims against the estate, and all approved claims and bills are paid, the personal representative distributes the assets.
If the will calls for the creation of a trust for the benefit of a minor, spouse or incapacitated family member, the trust is created and funded from the estate. The executor/personal representative will create new deeds for property, liquidate assets, transfer or sell stocks and bonds, and transfer property to the beneficiaries while having them sign Refunding Bond and Release forms to help with the next step.
6. Close the estate.
The Refunding Bond and Release basically says that the beneficiary received his or her bequest and is releasing the executor/personal representative from their duties. A formal accounting may be required to be filed with the court, or an informal accounting may also be required.
If you need legal advice regarding the probate process please call us at 973-834-8588 so you can speak with a New Jersey Probate attorney or email us at info@focusedlaw.com with any questions.
