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Overview Of The Probate Process

If you are here to learn about the probate process after the passing of a loved one, we first want to say that we are very sorry for your loss.

We hope that the information you find on this page will simplify any legal and administrative headaches you might otherwise face during such a difficult time.

Probate is a court-supervised procedure that helps to ensure the legal transfer of assets from the deceased to the rightful heirs or beneficiaries.  

Probate is also necessary to:

  • Prove the validity of the Will.

  • Appoint someone to manage the estate (The “administrator” if there is no Will or the “executor” if there is one)

  • Inventory and appraise the estate property

  • Pay any debts or taxes (including estate taxes)

  • Distribute the property as direct by the Will or by the state law if there is no Will

What’s So Bad About Probate And What Should I Do Next?

You may have heard that probate is bad news and it tends to be very expensive and time-consuming.

It depends, but one thing for sure - the probate process is a public process and the easiest way to avoid the probate process is to plan.

However, if you are now in a situation where you must go through probate process to finalize the estate of a loved one, the best thing you can do is get educated and get help to complete the process as quickly, and cost-effectively, as possible.

How Is Probate Started in New Jersey?

Before the probate procedure is initiated it is necessary to determine whether there is a need to probate the Will. A Will does not need to be entered into probate if there are no assets in the decedent’s name solely at the time of death. In some instances where there are no assets in the decedent’s name solely, a family may wish to put a closure to the death and may file the Will with the Surrogate’s Court. The Will is assigned a docket number and is public record.

If the decedent has assets solely in his/her name at the time of death then the Will must be probated regardless of the value of the estate. You probate in order for the named executor in the Will to be given the authority to transfer the assets both real and personal to the estate

The probate of a Will cannot occur until the 11th day from the date of death. The procedure may be initiated in the Surrogate’s Court earlier but the issuance of short certificates will not occur until the 11th day. This 10-day period allows for the filing of a caveat by an heir at law or beneficiary in a prior last Will.

The probate process is initiated with the presenting of the original Will together with a certified copy of the death certificate and list of heirs at law to the Surrogate by the named executor.

If the decedent dies without leaving a Will and is a resident of New Jersey, state law determines who has the right to administer the estate and provides the manner for distribution of the assets.

Under these circumstances, the application for administration may not be granted until the 5th day after the decedent died.

How Is The Executor Chosen?

If the decedent had a Will, the person named in the Will as the Executor will serve, if eligible. If that person is unable or unwilling to serve as Executor, or if there is no Will, then any interested family member or person can apply to the Court to be the administrator of the Estate.

How Does The Executor Get Paid?

The executor is entitled to a fee for services performed. Under New Jersey law, the executor of an estate is generally entitled to the following commissions (remember, executor commissions are only allowable on “probate assets” and on real estate which comes into the hands of the executor):

  •  6.0% on all estate income; 

  • 5.0% of the estate up to $200,000; 

  • 3.5% on excess above $200,000 up to  $1,000,000; 

  • 2.0% on excess over $1,000,000 or such other percentage as the court may determine

There are different rules for commissions when there is more than one executor, or when the executor has rendered unusual or extraordinary services. In some cases, family members may choose not to accept (i.e., waive) fees. However, a decision to waive fees should be made only after careful consideration of the distribution of the estate’s assets, and tax consequences of not taking the deduction for payment of the commission.

Could I Be Held Personally Liable For Making a Mistake
As An Executor?

Being an Executor is a big responsibility. State law provides rules and procedures that an Executor must follow during the probate. Also, there are certain deadlines that an Executor must meet in filing papers with the Court. If an Executor violates any of these rules, they can be held personally liable for losses to the estate.

My Loved One Had A Trust . . . Will We Need To Go Through probate?

In most cases, no.  If your loved one’s assets are owned in the name of a Trust, the family can contact a lawyer who will complete some paperwork and guide the loved ones through the process with ease without the need for court involvement.

Unfortunately, many people who have a Trust think they have it all taken care of.  But time and again, family members’ of a recently passed loved one come into my office and they find out they are facing the frustration, expense and delay of a probate, even though the person they loved had a trust.

Why is that?

Often the Trust was prepared many years ago and was never updated; and often, their loved ones’ assets were not owned in the name of their Trust.  That is why it is so very important that you carefully choose your estate planning attorney and have regular reviews of your plan and assets so the planning you do now works as planned later.

It’s why we do things so much differently than most other lawyers and law firms, here at Belotta Law Firm LLC.

What Assets Are Subject To Probate?

Assets owned solely in the name of the deceased person are subject to probate. Assets that pass by means of title, such as real estate titled as “Joint Tenants with Right of Survivorship,” or bank accounts titled as “Transfer On Death” are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate. In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process. Please contact us if you have questions about your specific situation.

How Is Distribution Of The Estate Handled If There Is No Will?

If the decedent dies without leaving a Will and is a resident of New Jersey, state law determines who has the right to administer the estate and provides the manner for distribution of the assets.

If the decedent has a surviving spouse, domestic partner or civil union partner but no children of the decedent and no parents, the surviving spouse or domestic partner or civil union partner receives 100% of the estate and no bond is required.

If the decedent has a surviving spouse, domestic partner or civil union partner and children of the decedent’s all of whom are also children of the spouse and no other descendants the spouse or domestic partner or civil union partner will receive 100% of the estate and no bond will be required. The children receive nothing.

If the decedent has a surviving spouse, domestic partner or civil union partner and no children of the decedent but surviving parents the spouse or domestic partner or civil union partner will receive the first 25% of the estate but not less than $ 50,000 nor more than $ 200,000 plus three-fourth of the balance of the estate; parents receive all other assets. A bond will be required for an estate over $ 50,000.

If the decedent has a surviving spouse, domestic partner or civil union partner and children of the decedent whom are not children of the surviving spouse, the spouse or domestic partner or civil union partner will receive the first 25% of the estate but not less than $ 50,000 nor more than $ 200,000 plus one-half the balance; children will receive all other assets. A bond will be required for an estate over $ 50,000.

If the decedent has a surviving spouse, domestic partner or civil union partner and children of the decedent and children who are not children of the decedent the spouse or domestic partner or civil union partner will receive the first 25% of the estate but not less than $ 50,000 nor more than $ 200,000 plus one-half the balance; children receive all other assets. A bond will be required for an estate over $ 50,000.

If the decedent has no spouse, no domestic partner, no civil union partner, no children of decedent, no parents, no descendants of parents, no grandparents or descendants of grandchildren but children of the spouse (stepchildren) the stepchildren will receive 100% of the estate and a bond will be required.

If you die leaving no spouse, no domestic partner, no civil union partner, no children of the decedent, no parents, no descendants of parents, no grandparents or descendants of grandparents and no children of a spouse the estate passes to the State of New Jersey Unclaimed Property Administrator.

How Long Does Probate take?

Depending on the complexity of the estate and the thoroughness with which accounting has been carried out before death, probate and administration of the estate can either be a relatively simple task or a daunting one. Be aware that no matter the situation, administration of the estate may be a lengthy process often taking up to 12 months, and one which may take a considerable amount of an executor’s time

How Much Does Probate Cost?

Every probate proceeding is different. Probate and estate administration costs may include court filing fees, attorney fees, appraisal fees, professional fees such as tax preparation, executor compensation, document certification fees, recording fees, and more. The Surrogate’s court can order additional fees for more complicated cases or extraordinary services

Getting Help. Choosing The Right Attorney For Your Probate Case

The best way to ensure your probate is done right is to choose your attorney wisely.

Do not assume that all attorneys are the same!  Too many lawyers only “dabble” in probate or trusts. Don’t choose a lawyer who does probate as a sideline because these lawyers often blunder causing real problems for their client and their cases often take longer than those handled by experienced probate lawyers.

You don’t have to use the attorney who prepared the Will either! 

Just because a particular attorney prepared the Will, this does not mean that attorney must handle the probate, nor are they necessarily the right person for the job. You need to be comfortable with the attorney and confident that they are the right attorney for you.

Choosing your probate or trust lawyer is one of the most important decisions you will make.

If you put in the time and effort to find the right lawyer, you will be rewarded with a skillful guide who will help you navigate the probate process.

Contact Us For A Complimentary Post-Death Estate Review

If you’re ready to get started with the probate process after the passing of a loved one, please us at (973) 474-2192 to schedule a complimentary 15-minute consultation to help determine your next best steps. We are here in service to making this all as easy as possible on you.

During this appointment, we will answer all of your questions about probate and guide you and your family through the next best steps.  We are committed to helping you administer your loved one’s estate as quickly and efficiently as possible, and look forward to relieving any administrative or legal burdens you may face during this time of loss.