Posted Under: Estate Planning and Probate
1) How do I begin the probate procedure?
The person that wishes to be appointed to represent the Estate will bring a certified copy of the death certificate and the original Will. While the Surrogate can begin the paperwork anytime after death, probate cannot be completed until the day following the tenth day after death.
2) Is the probate process expensive?
No. While fees are set by the New Jersey legislature, most probates cost less than $200.00.
3) Who has the right to be appointed when an individual dies without a Will?
The surviving spouse or domestic partner has the first right. However, any heir may be appointed assuming they obtain the appropriate renunciations from any other heir who has an equal or prior right to be appointed.
4) If an individual dies without a Will, what is the surviving spouse or domestic partner entitled to?
Where the surviving spouse or domestic partner has children of the same marriage and no stepchildren, the spouse or the domestic partner will inherit the entire estate.
If there is a child or children of the same marriage and the surviving spouse or domestic partner has a child or children of a prior union, then the spouse or domestic partner will take the first 25% of the estate, but not less than $50,000.00 nor more than $200,000.00, plus one-half of any balance. Decedent’s children share the other half equally (from this marriage or any prior union).
If the decedent has children from a prior union, the spouse or domestic partner will take the first 25%, but not less than $50,000.00 nor more than $200,000.00, plus one-half of any balance. Decedent’s children (from this marriage or any prior union) share the other half equally.
If there are no children, but the decedent is survived by parent(s), the spouse or domestic partner will take the first 25% of the estate, but not less than $50,000.00 nor more than $200,000.00, plus three-fourth of any balance. The parents will inherit the other one-fourth.
5) a. What is the procedure in a small estate without a Will or surviving spouse or domestic partner?
If a person dies without a Will or surviving spouse or domestic partner, but does leave heirs and the total value of the real and personal property does not exceed $10,000.00, one of the heirs with consent of the others may obtain an Affidavit of Heir in lieu of filing a formal Administration.
5) b. What is the procedure in a small estate without a Will when there is a surviving spouse or domestic partner?
If a person dies without a Will and is survived by a spouse or domestic partner, and the total value of the real and personal property does not exceed $20,000.00, the spouse or domestic partner may obtain an Affidavit of Surviving Spouse or Domestic Partner in lieu of filing a formal Administration.
6) Why do I need to post a bond if someone dies without a will?
New Jersey has determined that a bond must be posted that represents the full value of the real and personal property in the Estate. The bond acts as an insurance policy on the Estate to ensure that the assets are distributed properly. The Surrogate does not have the discretion or right to waive the requirement.
7) How does the surviving spouse or domestic partner access joint bank accounts or certificates of deposit?
Certain bank accounts or certificates of deposits may be owned with right of survivorship, which means that upon the death of one party to the account, the surviving spouse or domestic partner becomes the sole owner. The surviving spouse or domestic partner becomes the sole owner. The surviving spouse or domestic partner can fill out an affidavit of waiver or L-8 form at the bank to access the funds.
8) How may Surrogates certificates will I need?
A list of the Estate assets should be prepared to show the number of transfers that will need to take place. That number should reflect the required number of certificates. Additional certificates can always be requested from the Surrogate’s office. Check with the particular bank or institution as to how many certificates will be necessary.
9) Do I need to file a formal accounting if I represent an estate?
The answer is no as most Estates in New Jersey are settled without formal court proceedings. A representative may, however, file an informal accounting with the court or obtain a written agreement/consent form from all of the beneficiaries to the Estate that dispenses with the accounting, approves the actions of the representative and provides for the method or manner of distribution.
10) How do I prove that a distribution or legacies were paid?
A document called a refunding bond and release can be utilized and signed by each beneficiary to the Estate. They are then forwarded to the Surrogate’s office for filing. If the decedent dies without a Will, the bond posted can only be cancelled when the refunding bonds and releases are filed for all of the beneficiaries.
11) What are the Surrogate certificates used for?
They will show evidence of the authority of the personal representative to act. They are necessary to accomplish certain tasks such as transferring real estate, stock accessing or closing bank accounts, etc.
12) Am I entitled to compensation as a personal representative?
The answer is yes. The New Jersey Legislature has set commissions based on corpus and income amounts that are allowable on all Estates, Trusts and Guardianship matters. You are entitled to 5% on all corpus not to exceed $200,000.00, 3.5% in excess of $200,000.00 up to $1,000,000.00, and 2% over $1,000,000.00.
13) What is the personal representative required to do?
They are required to collect and safeguard all of the assets of the Estate, pay the debts and taxes and turnover the balance of the Estate funds to the beneficiaries.
14) Am I, as a personal representative, protected against creditors of the Estate?
Creditors must come forward and pursue their claims within nine months of the date of the decedent’s death. If a claim is not presented within the nine month period, the personal representative shall not be liable to the creditor with respect to any assets he or she may have delivered or paid in satisfaction of any lawful claims or shares due beneficiaries of the Estate before the presentation of the claim.
15) Is it necessary to send copies of the Will to the beneficiaries?
The personal representative is required, within sixty days of probating the Will or taking out letters of administration, to notify the heirs at law, next of kin and beneficiaries in writing that the Will is probated, the date and place of the probate, the name and address of the personal representative and a statement that a copy of the Will shall be furnished upon request. A proof of mailing would be filed in the Surrogate’s office evidencing the mailing.
16) What is done with a safe deposit box?
The personal representative is permitted to remove the original Will and deeds to a cemetery plot from a safety deposit box. There is no longer a requirement to have a representative from the New Jersey Inheritance Tax Bureau present. Any other items present in the box can be removed only on the presentation of a Surrogate’s certificate or if it is jointly owned then the joint owner can access and remove the items.
17) Where does the personal representative obtain the funds to pay the debts?
Normally, the representative of the Estate will open and maintain an Estate checking account to pay bills and debts of the Estate. Assets in the decedent’s name alone are usually liquidated and placed into the checking account. Remember that existing accounts are allowed to be accessed up to one-half of their value pending the tax waivers being received.
18) How soon must state inheritance taxes be paid?
New Jersey inheritance tax returns must be filed and the tax paid within eight months after the date of death to avoid interest. While an extension to file may be granted, the tax must still be paid initially.
19) Are unpaid inheritance taxes a lien on real and personal property?
The answer is yes. In order to sell real estate, tax waivers will be necessary from the New Jersey Inheritance Tax Bureau. The waiver is filed with the County Clerk in the county where the land is located. Land held by husband and wife as tenants by the entirety need not be reported and may be transferred without a waiver. Personal property such as bank accounts that do not meet the affidavit of waiver or L-8 formula will not be fully released until the appropriate waivers are received.
20) How can I change my Will?
Either by a codicil, which is an addition or supplement made to change or add provisions to your Will, or by a new Will. The codicil will republish the Will in all other respects. Remember that handwritten changes and markings made can invalidate the Will. The Surrogate will be unable to act and probate will need to be done in the Superior Court.
21) Can I disinherit my spouse, domestic partner, children or family under my Will?
The answer is yes; however, a surviving spouse or domestic partner may be able to file for an elective share against the Estate and if good cause is shown a disinherited child may also seek to recover a share of the Estate.
22) Do I need an attorney to prepare my Will or represent an estate?
The answer is no. However, it is strongly suggested that you seek the services of an attorney to prepare your Will as defects can cause more problems than the initial cost to have the Will properly drafted.
23) Can the probate process be stopped in the Surrogate’s office?
The answer is yes; before a probate is begun or completed, a caveat can be filed that restricts or prohibits the Surrogate from taking any other action on the probate. The process would then have to proceed in the Superior Court by Verified Complaint and Order to Show Cause for a hearing and determination.
24) Can I challenge a probate after it is completed?
The answer is yes. New Jersey Court rules set forth the time frame in which an application can be made to set aside a probate. The time differs on the residency of the person making the application. The complaint must be made in the Superior Court, Chancery.