Process to Probate a Will or

Administer an Estate in New Jersey

Probating a Testate Estate

Like any legal process, probate can seem quite daunting; for some, it may appear easy enough without the aid of an estate and probate attorney. “Probate” is the court-supervised process of administering a decedent’s estate. The court responsible for overseeing probate is the Surrogate Court in the county in which the decedent was living at the time of their death. The Surrogate Court is a “summary” court; this means the Surrogate cannot hear matters that involve factual dispute. In fact, if the decedent prepared a will themselves or through a do-it-yourself site, the Surrogate also may not be able to appoint certain types of personal representatives or admit the will to probate unless it falls within the statutes for required writings and will witnesses.

If the decedent left a testamentary will, the person named by the decedent to carry out the decedent’s wishes is called an executor. The executor named in the will begins the probate process by bringing an original copy of the will to the County Surrogate Court. The court will then verify that the will is valid. This may require calling upon the witnesses who signed the will unless the will is “self-proving.” A “self-proving” will has a notarized, self-proving affidavit attached to it. When a will is self-proving, the court will presume the will is valid without additional acts necessary on behalf of the estate executor.

Once the County Surrogate has confirmed the will is valid, the Surrogate will officially appoint the executor by issuing Letters Testamentary. It is the Executor or Executrix’s duty to send Notice of Probate to all next-of-kin and beneficiaries within 60 days. Notice of Probate helps protect the executor or executrix from potential lawsuits by limiting the time other parties have to four (4) months from the time of their receipt fo the Notice of Probate. This Notice of Probate must also be filed in the Surrogate’s Court by the executor or executrix. Next, the executor will be responsible for administering the decedent’s estate by marshalling all estate assets, paying off creditors and lienors, identifying all beneficiaries, paying and filing estate taxes, and winding up the estate.

Testate estate can be simple or complex depending upon the terms of the will and the nature of the assets. If the will requires disposition of estate assets as quickly as possible, Executors must be wary of the six (6) to nine (9) month timeline for creditors to attach or notify the estate of debts and potential tax implications. Even in the event all beneficiaries are Class “A” and no inheritance tax is due, if there is real property in the estate, it is still critical to have the real property waiver filed with the New Jersey Division of Taxation and the waiver from the Division filed with the County Clerk as tax liens can attach up to fifteen (15) years and serves to cloud title (i.e. more lawsuits)!

During this process, the executor must keep careful records of all assets coming in and going out of the estate. An executor often will have to have to submit an accounting to the beneficiaries, if not the Surrogate Court, to end the probate process in New Jersey.

Administering an Intestate Estate through the Probate Process

Alternatively, if the decedent died without a will, or the executor named in the will is not available to serve, the Surrogate Court may appoint someone else to administer the decedent’s estate. This person is called an “administrator” and has the same duties as an executor. New Jersey Statute defines the heirarchy of those to be appointed the personal representative of an estate as first the spouse or domestic partner, then to remaining heirs, or then to anyone who will accept them. If there is no surviving spose, but there are multiple remaining heirs, the party seeking appointment as the Administrator of the estate must acquire renunciation forms from the remaining heirs at the same level. This means, amongst three (3) siblings, one sibling must acquire notarized renunciations from the other two to be filed with the Surrogate in order to become appointed. Without notarized forms, a Verified Complaint and Order to Show Cause must be filed in the name of the estate (i.e. a lawsuit).

Once an administrator is appointed, they often must be “bonded” in the amount of the estate. This requires personal information such as personal wealth and income, in order to qualify with a bondsman. Once qualified, the Administrator will pay a premium to ensure estate assets are protected while the administrator performs their duties on behalf of the estate. Much of the process, whether as administrator or executor, is the same in probate estate in New Jersey. However, the most common reason for obtaining a will is to remove the added cost of a bond. A testator can also remove other obligations required by statute, or ensure those obligations are carried out for fairness to the beneficiaries.

The probate process tends to be longer and more expensive for intestate estates. The timeline does not necessarily change for the size of the estate because the determinative factor is the complexity of the assets and the amount of liabilities. Intestate estates tend to be longer because of a statutory requirement that disposition not be given to the beneficiaries until twelve (12) months from their appointment. Nevertheless, with a signed and notarized agreement between all of the benficiaries, this can be reduced.

Interested parties may challenge the validity of the will, the appointment of the executor or administrator, or how the executor or administrator administers the estate. Lawsuits may arise with regard to how a personal representative administers an estate, how a trustee of a trust manages the trust, and may even be brought against said executors, administrators, or trustees for breach of their fiduciary duty towards the trust or estate.