Probate is the legal process that occurs when a deceased person leaves assets to be distributed. To obtain probate under the New Jersey procedure, an executor is often named in the will, or the court appoints an administrator if there is no will.
Furthermore, this entails gathering the deceased’s assets to pay off any outstanding bills on their estate and distributing the assets to beneficiaries.
So let’s quickly move ahead. If you are eager to know how probate works then this article will enlighten you about the major things you need to know about probate procedure even in New Jersey.
Table of Contents
- What Is Probate?
- How Probate Works
- Probate Laws in New Jersey
- Is probate always required?
- When is it not required in New Jersey?
What Is Probate?
Probate is a legal process supervised by a court that may be required after the demise of someone.
It gives someone authorization to assemble the deceased person’s assets, pay bills and taxes, and eventually transfer assets to the persons who inherit them.
This is frequently the surviving spouse or another close family member. However, probate is not always necessary in New Jersey, and a shortened process may be available for small, uncomplicated estates.
How Probate Works
Probate is the process of analyzing and transferring estate assets previously owned by a deceased person.
When a property owner dies, the assets of the deceased are typically evaluated by a probate court.
This court makes the final decision on asset partition and distribution to beneficiaries. A probate case will normally begin by determining whether or not the deceased person left a legally binding will.
In many circumstances, the deceased person left behind a will, which is a document outlining how their assets should be transferred after death.
In other circumstances, though, the deceased does not leave a will. Both cases include unique circumstances, which we’ve detailed here.
Probate with a Will
A testator is a deceased individual who left a will. When a testator passes away, the executor is in charge of starting the probate procedure.
Typically, the executor is a family member. The will can also include information about a specific executor.
The executor is in charge of submitting the will to the probate court. The timeline within which a will must be submitted after death varies by state.
The probate process begins with the filing of the will. The probate procedure is a court-supervised proceeding in which the validity of the will left behind is verified and accepted as the deceased’s true last testament.
The executor listed in the will is officially appointed by the court, giving the executor legal authority to act on behalf of the deceased.
A will usually name a legal agent or executor who has been approved by the court. This person is in charge of locating and supervising all of the deceased’s assets.
The executor is required by the Internal Revenue Code (IRC) to assess the worth of the estate using either the date of death value or the alternate valuation date.
Most assets subject to probate administration are overseen by the probate court in the county where the decedent resided at the time of death.
Real estate is an exception. Real estate probate may need to be extended to any county where the property is located.
The executor is also responsible for paying any taxes or debts owed by the deceased from the estate. Creditors often have a limited time (about one year) from the date of death to file claims against the estate for money owed to them.
Claims that the executor rejects can be taken to court, where a probate judge will decide whether or not the claim is warranted.
The final personal tax returns for the deceased must be filed by the executor on their behalf. Any outstanding estate taxes may also become due within a year after the death.
The executor will then get permission from the court to distribute whatever is left of the estate to the beneficiaries after doing an inventory of the estate, determining the worth of the assets, and paying off debts.
However, if a decedent’s estate is insolvent, meaning that their liabilities exceed their assets, the administrator will probably decide not to open probate.
Generally speaking, every state may have its laws governing the statute of limitations for administering a will through probate. States may also set filing requirements for probates.
Probate Without a Will
A person is considered to have died intestate if they pass away without leaving a will. A will that was submitted to the court and was found invalid constitutes an intestate estate as well.
An intestate estate’s probate procedure comprises allocating the decedent’s assets following state regulations. There may not be a need for probate if a deceased person has no assets.
Generally speaking, the appointment of an administrator to manage the decedent’s estate is the first step in a probate court case.
The administrator serves as the executor of the estate, receiving and disbursing all legal claims against it.
It is the responsibility of the administrator to track down any living spouses, children, or parents who are the deceased’s, lawful heirs.
The probate court will determine whose assets must be distributed among the legal heirs and how they should be distributed.
In most places, the surviving spouse and children of the deceased are given equal financial treatment under the probate rules.
Escheatment is the process of transferring property to the government. Most states do establish a deadline for heirs to claim any assets they may be entitled to.
Spouses as Joint Property Owners
In an intestate proceeding, community property laws may recognize both spouses as joint property owners.
In practice, the surviving spouse is usually at the top of the distribution hierarchy. When a person passes away while single or widowed, their assets are often split among any remaining children.
After taking into account a husband and children, further relatives can also be regarded as suitable for distribution.
Under a state’s probate regulations for intestate estates, close friends of the deceased are not usually put on the list of beneficiaries.
However, if the dead had a joint account with a right of survivorship or jointly held property with another, the surviving partner would automatically acquire the joint asset.
Probate Laws in New Jersey
“Probating the Will” is the duty of the person designated as the Executor of a will. The executor must prove the validity of the Will through the process of probate.
A county surrogate is a Judge in charge of probating a will. A Surrogate typically won’t probate copies of a Will; only the original will. The executor will vouch for the validity of the Will if it contains clauses that show it is “self-proving” without the need for further evidence or witness.
In New Jersey, the probate process is intended to encourage the efficient distribution of the decedent’s assets.
These assets will be delivered without undue delay and free and clear of tax liens to the beneficiaries named in the will if the executor follows the probate processes correctly.
An executor should hire a knowledgeable probate lawyer to help them navigate the time-sensitive and rather intricate probate proceedings.
A will cannot be probated until at least ten (10) days have passed since the decedent’s death. In the county where the decedent was residing at the time of death, probate must take place before the surrogate.
The original will, a certified copy of the death certificate, a list of the names and addresses of the deceased’s next of kin, as well as a checkbook to cover different fees and costs, must all be brought by the executor.
The Probate Process in New Jersey
All probate matters in the state of New Jersey are handled by the county surrogate court.
The necessary legal documents, either “Letters Testamentary” for an executor or “Letters of Administration” for the administrator, will be distributed by the Surrogate Court.
Then the probate proceeding begins. The court will appoint someone to handle the administration of an estate, i.e., a personal representative.
Many times, the decedent will already have named the personal representative in his or her will. If not, the court or clerk of the court will appoint someone.
He or she must:
- Gather all the deceased person’s possessions.
- Dispense with the bills (funeral costs, debts owed, taxes, and general administrative costs).
- Distribute any remaining resources
The Role of the “Executor” in the Probate Process in New Jersey
Inventorying and gathering the decedent’s assets—often referred to as “marshaling the assets”—is one of the executor’s duties.
The executor is then responsible for covering all debts owed by the deceased, including funeral, hospital, and medical costs. All of the decedent’s creditors should also get a notice from the executor. The executor may accept, reject, or settle estate creditors’ claims if they make contact with him or her.
The executor is prepared to distribute estate assets to the beneficiaries specified in the will after the State of New Jersey has granted the necessary tax waivers.
However, the beneficiaries need to first receive refunding bonds and releases from the executor.
The executor shall disburse the assets to the beneficiaries following the terms of the will after the beneficiaries have signed and returned the refunding bonds and releases.
It is not advised to name a will’s beneficiary as the executor.
There is a conflict of interest. Frequently, a reputable family lawyer is chosen as executor and manages the case in the best and most equitable interests of all parties.
Is probate always required?
Knowing if a probate is necessary after a person’s passing is crucial. The conclusion of the probate procedure can take a lengthy period.
The settlement and distribution of the estate’s assets will take longer the more complicated or contentious it is. Cost increases as length increases.
Estates without a valid will often pay more to probate than those who do. However, each still requires a lot of effort and money.
Additionally, avoiding probate would guarantee that all settlements are conducted in private because a probate court’s actions are publicly documented.
Regarding probate and if it is necessary following a testator’s death, different states have varied laws. Several states have a set estate valuation that necessitates probate.
For instance, according to Texas’s probate regulations, probate may be avoided if the estate’s value is less than $75,000.
If an estate is too tiny to go through the probate procedure, the asset of the estate may be claimed using alternative legal procedures, like an affidavit.
Ordinarily, probate is not always started and other procedures may be done if a deceased person’s debts exceed their assets.
Using trust is another well-liked method of avoiding probate.
In general, it may be wise to reduce probate-related expenses. Court charges, labor hours, and administrative fees are examples of accumulated costs.
One of the most popular strategies to rapidly get through a probate process and effectively divide assets is to have an easily authenticated will.
When is it not required in New Jersey?
The use of a probate court is not always essential. Some property can be passed to its new owner without going through probate, known as “non-probate” property.
Typical non-probate assets are:
- Assets owned by the deceased in joint tenancy or tenancy by the entirety with a third party, which immediately pass to the remaining owner.
- Assets designated outside of the will, such as IRAs, 401(k) plans, payable-on-death bank accounts, or assets for which the decedent made a beneficiary designation
- Pension benefits or life insurance profits payable to a named recipient
- Real estate that was covered by a transfer-on-death deed after the owner passed away
- A revocable living trust’s assets.
It’s possible that all or the majority of the decedent’s property can be transferred without having to go through the probate process.
The process of probate involves examining and distributing the assets that belonged to a deceased person’s estate.
In New Jersey, a will’s executor or administrator distributes the estate’s assets to beneficiaries. The executor is in charge of initiating the procedure for a testator, a decedent who left a will.