If you have come across this blog because you are grieving the death of a loved one and are facing probate, let us first express our deepest sympathies for your loss. Death is hard emotionally; it can also be hard legally when probate is involved. Probate is a New Jersey court process that may have to take place before your loved one’s possessions and assets can be officially transferred to you and to their other beneficiaries/family members. Usually, probate is a complicated and time-consuming endeavor that involves a lot of paperwork and legal red tape. However, with the right lawyer on your side to guide you, you may be able to avoid it altogether, take a “shortcut”, or get through it faster and more efficiently.
Probate court (also known as “surrogate” court, in New Jersey) is unfamiliar to most people. Below, we’ll discuss:
- The purpose of probate
- Whether or not probate can be avoided after the death has occurred
- What steps probate involves in New Jersey
- What you need to know if you’re the estate executor/administrator
- How probate works with a will versus without one
- Why probate sometimes leads to lawsuits
- What you can do to prevent probate of your own estate in the future (and why you should)
- And why working with local probate lawyers is in your best interests.
Read on to learn about what probate is like in New Jersey!
Why is probate required?
The purpose of probate is to make sure that the deceased person’s possessions and assets are given to their rightful heirs, and not just seized by anybody who wants to make a claim to them. It is also to ensure that debts and taxes are properly paid. Seen from that angle, probate is more palatable, although it is still extremely inconvenient for the family members who just want to mourn in peace and instead have to deal with court fees and processes.
Is probate always necessary?
One of the reasons why not everyone has heard of probate is because not every deceased person’s estate has to pass through it, or at least not in the same way.
For one thing, there are only certain assets that must be probated; these are mostly assets that the deceased person owned in their name only. Any assets that were co-owned in joint tenancy/tenancy by the entirety pass automatically to the surviving co-owner. Assets that had designated beneficiaries, like IRA or 401(k) plans, or payable-on-death bank accounts, or life insurance proceeds, or pension benefits, don’t have to pass through probate in order to transfer. Real estate that had a transfer-on-death deed doesn’t have to pass through probate, nor do any assets that were held in a trust.
However, these assets have to be considered non-probate before the person passes away; there isn’t a way to convert assets once the death has already occurred.
If there was no will left behind, and the asset value is low, the deceased person’s estate may qualify for a simplified form of New Jersey probate, which is quicker and less expensive than the traditional process. If there was no will and the value of the assets doesn’t exceed $50,000, and the spouse/partner is the one inheriting, they can file an affidavit for simplified probate without needing to undergo any court proceedings. If there was no will or spouse/partner, and the value of the assets doesn’t exceed $20,000, other family members can file an affidavit to inherit.
If none of the above circumstances apply, then traditional probate will likely need to occur. Our New Jersey probate lawyers can review your situation and explain your options!
What steps probate involves in New Jersey
In a traditional probate proceeding, everything begins when the will and a certified copy of the death certificate is submitted to the probate court, which usually needs to happen within 10 days of the death. If you are named in the will as the estate executor (the person in charge of probate), you must go to the court and request to be formally appointed. If the will was not “self-proving”, one of the two witnesses must also appear or submit a sworn statement. If there is no will, you can request to be appointed as the “administrator” which is essentially the same thing (although New Jersey law gives the spouse/partner first priority to be appointed).
After probate has been opened, the estate executor/administrator is responsible for completing the following steps (in most cases):
- Posting a bond (an insurance policy that protects the estate)
- Receiving Letters Testamentary/Letters of Administration (which gives the authority to complete probate)
- Collect and provide for the care/safekeeping of the deceased person’s assets
- Inventorying the assets and having them appraised
- Formally notifying all heirs, creditors, and the public within 60 days
- Settling outstanding debts with creditors
- Filing a final tax return and paying taxes
- Filing a final accounting
- Distributing remaining assets to beneficiaries as the will (or New Jersey intestate laws, if there is no will) directs
- Keep careful records and submit them to the court
- Close the estate
- And more.
If you are the estate executor…
If you are the one named as the estate executor or administrator, you have many legal duties. You can be held legally liable if you make mistakes, or if creditors make claims against the estate, or if family members disagree with your actions. The court could impose fees on you or you could even end up being sued. You also have to spend the time to carry out probate, which could take months or even years before everything is resolved.
Because you take on risk, you may be entitled to compensation or a commission for the work you do; in New Jersey, this is typically 6% of the income received by the estate, plus 2 – 5% of the value of the gross estate. Experienced New Jersey probate lawyers can protect you from potential pitfalls, take the burden of probate off you, represent you if you are sued, and ensure that you receive the correct commission.
What our New Jersey probate lawyers can do for you
Probate is overwhelming. Our New Jersey probate lawyers will take the time to explain everything you need to know and what your options are, answer all of your questions, and handle everything for you so you can focus on moving forward with your life after loss. We can also help you get the right estate planning measures in place to prevent your family from having to go through probate when you pass away!
At The Law Offices of Patel & Cardenas, we have over 6 attorneys on our team who are licensed in both New York and New Jersey and have over 30 years of collective experience in probate law and related areas, such as real estate, bankruptcy, and litigation. We have successfully served over 1,300 clients, and we can do the same for you! Call us today to book a free consultation and discuss your next steps.
