The Probate process is required by the state of NJ whenever someone dies. It is the government’s way of making sure the assets of the deceased pass properly to their decedents. And of course to insure that any taxes or lien’s owed to the state or other parties are fully paid.
Nobody gets out of the probate process. Even if you are the only living relative and the deceased left a perfect will with one line that says “I leave everything to YOU!”. You still have to go through probate. The best you can do is try to make it as short and non contentious as possible. The shorter the process, the sooner the assets can be released to you.
How long the process takes however, is not entirely in your control. When estates are large, complex, left in disarray, a will is missing or poorly formed, or people “contest” the validity of the will, the probate process can drag on for literally years.
How does the NJ Probate Process Work?
The person named as Executor under a Will is charged with the responsibility of “probating the Will”. Probate is the process of proving the authenticity of the Will by the County Surrogate. Generally, a Surrogate will only probate an original Will and not duplicate copies. If the Will has provisions that indicate that it is “self-proving”, the Surrogate will authenticate its validity without additional proof or testimony.
The probate procedures in New Jersey are designed to promote the orderly disposition of the assets owned by the decedent. If the probate procedures are properly followed by the Executor, these assets will be distributed to the beneficiaries designated by Will without undue delay, and free and clear of tax liens. As probate procedures are time sensitive and somewhat complicated, an Executor should retain an experienced probate attorney to assist him in the navigating through probate procedures.
An Executor must wait at least ten (10) days from the death of the decedent to probate a Will. Probate must occur before the Surrogate in the County of the decedent’s residence at the time of death. The Executor must bring the original Will, certified copy of the death certificate, a list of the names and addresses of the decedent’s next of kin, and a check book to pay various fees and costs.
Once the Surrogate deems the Will to be valid and authentic, it will issue letters and certificates to the Executor. This documentation serves as proof that the Executor is authorized obtain and transfer assets of the decedent.
Role of the “Executor” In the NJ Probate Process
The Executor’s responsibilities include inventorying and collecting the assets of the decedent which is often referred to as “marshalling the assets”. The Executor then must pay all expenses of the decedent, including medical, hospital, and funeral expenses. The Executor should also issue a notice to all creditors of the decedent. If contacted by creditors, the Executor can either accept, reject or settle the claims of creditors of the estate.
Once the State of New Jersey has issued the appropriate tax waivers, the Executor is then ready to make distribution of estate assets to the beneficiaries named in the Will. The Executor should first, however, issue Refunding Bonds and Releases to the Beneficiaries. Once the beneficiaries sign and return the Refunding Bonds and Releases, the Executor should then distribute the assets to the beneficiaries in accordance with the provisions in the Will.
It is not recommended to make a beneficiary of the will, its executor. The conflict of interests is obvious. Often a trusted family attorney is appointed executor and handles the matter to the best and fairest interests of all parties.
As a trusted advisor and council in all elder law and estate planning matters, Frank Campisano provides expert legal and personal guidance through the NJ probate process. His work during the probate of a will, can save estates tens of thousands of dollars in taxes and speed the process through the state to the maximum degree possible.