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 that is required to ensure the genuineness of a person’s will so that their assets can be distributed to their intended beneficiaries.
Does A Will Have Need 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 that 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.
Determining If Assets are Probate or Non-Probate
One of the first steps after a person is deceased to distribute the estate is to figure out if the assets owned by the decedent are probate assets. If they are non-probate assets, they won’t need to go through the process.
Non-probate assets are those held with other owners or those that have a named beneficiary. Some examples of this type of asset include the following:
- Life insurance policy with a named beneficiary
- Checking or savings accounts in a bank with a payable-on-death or transfer-on-death designation
- Assets owned jointly, such as a home with a surviving co-owner
- Assets in a living trust
- Real property (real estate) owned jointly with rights of survivorship
In each of these cases, someone is already identified as the person who will receive the assets after the owner dies. With the assets owned jointly, the surviving owner would automatically become the sole owner immediately upon the death of the deceased joint owner. A living trust names a beneficiary, or beneficiaries, who are designated to receive the assets owned by the living trust. Life insurance policies, retirement accounts, checking accounts, and other assets, which include a designated beneficiary, automatically roll over to that person when the owner dies. If these accounts don’t have someone listed as a beneficiary, they may need to be probated, because the law typically deems such assets to be estate assets.
It’s possible in some cases to avoid probate completely if you plan ahead and use these options. It is a good idea to sit down and figure out how to organize your assets to avoid probate for your heirs.
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.