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PROBATE and AVOIDING PROBATE

Getting Help

It is extremely important to seek competent legal advice upon the death of a loved one, particularly if you have not taken steps to avoid formal probate.  We are experienced attorneys and can help assist you with sorting through the process and help with the tasks ahead, so that you can concentrate on taking care of family matters during this very difficult time.

What is probate?

Probate is a legal proceeding to properly account for and administer property owned by someone who has died. It also involves paying the outstanding and final bills and expenses and taxes of the estate. Lastly, it involves making certain that whatever is left of the estate is distributed to the proper beneficiaries in accordance with the decedent’s Will or according to New Jersey law. A probate proceeding takes place in the probate court of the county where the deceased property owner most recently was domiciled, not where the person died. If the deceased also owned real estate in another state, additional proceedings may be necessary in that state.

What property is included in probate?

It is easier to explain what property is NOT included in the probate process. Generally, it is property with a named beneficiary, such as life insurance, annuities, pensions, IRA’s, etc. Property held as joint tenants with rights of survivorship, such as a husband and wife would own a home, or bank accounts in joint names, do not need to be probated.

Why is probate necessary?

Probate can rarely be completely avoided.  There is always a car, or a stray bank account making some form of probate necessary.  But, the fewer assets there are to probate, and the lower their market value, the less complicated and intimidating the probate process becomes. Essentially, even if you have taken steps to avoid formal probate, probate will still be necessary to give the executor or administrator the necessary legal authority to handle the decedent’s final affairs, sell assets, and pay bills on behalf of the estate, without incurring any personal liability.

What does probate involve?

Probating an estate involves applying to the County Surrogate for Letters of Administration. If there is a Will, this person is called the Executor. If there is no Will, this person is called the Administrator. The Executor or Administrator may be an individual, a bank or a trust company. The executor or administrator takes care of the following tasks:
– Gathering up and accounting for the property of the decedent;
– Receiving payments due the estate, including interest, dividends
and other income;
– Collecting debts, claims and notes due the decedent;
– Determining the names, ages and addresses of all beneficiaries.
– Investigating the validity of all claims against the estate and
paying all outstanding obligations including federal, state and local
estate, inheritance and income taxes;
– Hiring an accountant to file final tax returns, and filing estate
tax returns when required;
– Distributing the remaining assets of the estate to the heirs.

– The Executor or Adminstrator of an estate is entitled to a commission calculated on the gross value of the estate.

How long does probate take?

Probate generally takes about one year to complete. This is primarily driven by the fact that claims against the estate may be filed up to nine months from the date of death. However, if a New Jersey inheritance or a federal estate tax return is required, the administration of the estate could easily take more than a year.

Do I need a Will?

A properly drawn Will assures that, upon your death, your property will be distributed as you intended, and the person you trust to handle your affairs is appointed to do so. If you have minor children, the Will is also the mechanism for choosing their guardian, and provides for a trust to ensure that there bequest is used for the upbringing and education, rather than wasted. A Will also can dispense with the requirement of a surety bond, which an administrator might otherwise have to pay.  Even if we have placed most of your assets into a Revocable Living Trust to avoid probate, you will still need a “clean-up” or “loose ends” Will to take care of you miscellaneous property which will cost between $500 and $1,000 per year based on the size of the estate.

What if I can’t find the original Will?

This is more common than you may think.  The short answer is you need the original Will if you are going to Probate with the County Surrogate, so look harder!  If all else fails, we can probate a copy of the Will, but it is much more involved and considerably more expensive.  For more information on probating a copy of a Will, follow this link:  How to probate a photocopy of a Will.

How do I avoid Probate?

It is virtually impossible to avoid probate completely.  Many seminars are given and many books are written on how to avoid probate. Techniques involve gifting, re-titling of assets, placing assets living trusts, etc. In New Jersey, the probate procedure is not as complicated as it is in other states, and it is not particularly expensive. Contrary to common belief, avoiding probate does not save on taxes.  There are, however, many other valid reasons to avoid probate.  For more on the subject, click on Why Should I Avoid Probate?

Resources Available.

The office responsible for probating wills is the County Surrogate. The website addresses for the offices we most commonly deal with are set forth below.

Burlington County Surrogate’s Office

Ocean County Surrogate’s Office