What Is Probate?
Probate is a court-supervised legal process established to determine the validity of a person’s Will, and, once confirmed, to ensure that the person’s last wishes are honored and that their assets are distributed appropriately.
In other words, “probate” is simply the legal process our State requires to be followed to ensure the genuineness of a person’s Will so that their assets can be distributed to their intended beneficiaries.
Overview of the Probate Process
Probate has a reputation for being complex and arduous, but it is not. The process can be involved in those situations where a dispute arises, but absent any claim or dispute, it can be accomplished relatively quickly.
At the start of the probate process, a relative or individual designated in the deceased’s Will as an Executor or Personal Representative files an application with the Surrogate’s Office in the County where the decedent lived, asking to be appointed as the representative for the decedent’s Estate, which is comprised of the assets owned by the decedent at the time of death. The application is relatively simple and must be accompanied by a death certificate and the original Will. Representatives of the Surrogate’s Office will prepare papers to be executed by the proposed Executor, and upon execution of those papers and payment of a modest fee, letters will be issued to the Executor granting the authority to act on behalf of the Estate.
Once appointed, the executor is responsible for fulfilling all of the estate’s administrative duties, including (but not limited to):
- Obtaining a Tax Identification Number for the Estate.
- Establishing a bank account for the estate.
- Taking inventory of the estate’s assets.
- Notifying beneficiaries of pertinent developments or events.
- Transferring assets to beneficiaries.
- Filing court documents.
- Paying off any valid, outstanding debts.
- Closing the estate.
These tasks can seem daunting, especially for someone inexperienced with legal matters and procedures, so it is common for an executor to hire a knowledgeable probate lawyer to assist them. If the assets are being distributed to a spouse, parent, child or grandchild, there will likely be no need for the filing of an inheritance tax return, which can slow the final distribution of assets. New Jersey no longer imposes an estate tax, and the federal estate tax only applies to estates where the assets exceed $12.06 million dollars. However, this exemption is set to expire in 2026, and it is unclear whether it will be extended or a new exemption amount will be set. In sum, in those Estates that are under $12 million with assets being distributed to a spouse, children or grandchildren, the distribution can be made without the need to file any estate or inheritance tax return.
For some small estates, New Jersey offers a streamlined version of the probate process, which must first be requested by the executor.
If approved, the court permits the executor to distribute assets to their designated beneficiaries without the need to go through the steps of standard probate procedures, greatly reducing the time and stress often associated with the process.
To qualify for the simplified form of probate, an estate must fulfill either of the following requirements:
- It lacks a valid will, and the combined value of property is $20,000 or below.
- It lacks a valid will, the combined value of property is $10,000 or below, and there isn’t a surviving spouse or domestic partner.
In the first case, a surviving spouse or domestic partner is entitled to the money without probate, but they are required to set aside $5,000 of it to pay off any debts tied to the estate.
In the second scenario, a single heir, armed with the written consent from the others (if any), can file an affidavit to receive all of an estate’s assets.
If you are unsure if your estate meets either set of requirements for the simplified probate process, do not hesitate to consult with one of our seasoned estate attorneys. They will assess your situation, and help you determine the best course of action.
Does A Will Have To Be Probated?
Probate is typically required in New Jersey, but there are a handful of exceptions to this rule, such as:
- Estates that fall below a specific economic threshold.
- Wills that do not contain “probate assets” (assets which do not have a previously designated beneficiary)
Additionally, there are quite a few types of assets that are generally not subject to probate:
- Any and all assets included in a person’s Living Trust.
- Assets owned with someone else in a joint tenancy.
- Most qualified retirement assets, like IRAs or 401(k) plans.
- Life insurance proceeds or pension benefits.
What If There is No Will?
If a person dies without leaving a will behind, they are considered to have “died intestate.” The probate court will then follow state intestacy laws for the evaluation of the deceased’s estate, and the distribution of their assets.
In matters such as these, personal representatives are referred to as “administrators,” rather than “executors.” The process for being appointed as an administrator of an estate is slightly more involved with an emphasis on notice to other family members that someone is seeking to be appointed as the administrator.
Find A Probate Lawyer Near You
The probate process in New Jersey can seem overwhelming, but it doesn’t have to be. If you have been designated as the personal representative, administrator or executor of an estate, and are in need of assistance throughout the probate process, contact a probate lawyer from Byrnes O’Hern & Heugle.
When it comes to matters of estate planning, wills, trusts and probate, we have a proven track record of providing outstanding service for our clients, and ensuring that their wishes (or the wishes of a loved one), are honored.