Serving as an Executor or Administrator of an estate can be time consuming, burdensome, and oftentimes frustrating and confusing. It is not advised that you try to go it alone without the assistance of an attorney. An experienced Elder Law attorney can help you navigate the stressful probate process and alleviate your concerns.
To help you in your process, here are some common questions about NJ estate administration:
- What is probate? Probate is the legal process by which a decedent’s estate is transferred to his or her heirs or beneficiaries through testacy or intestacy. If a deceased person signed a Will during his or her lifetime, then the person is said to have died testate. A person who has not signed a Will during his or her lifetime dies intestate. In the case of a testate estate, the named Executor will petition the probate court to receive letters confirming appointment. In the case of an intestate estate, a loved one, friend, or other interested parties will petition the probate court, and an Administrator will be appointed and receive letters confirming appointment.
- What if my loved one does not leave a Will behind? If there is no Will, then an Administrator will be appointed to oversee that your loved one’s assets are distributed based on New Jersey intestacy laws.
- If my loved one did not leave a Will, will his or her assets be distributed to the State? Likely not. This is a common misconception. Once an administrator is appointed, he or she will distribute your loved one’s assets following the formula set in the New Jersey intestacy laws. So long as there is a spouse, child, or blood relative, it is likely that the State will not get anything. However, it is important to note that without a Will, you will have no control over which relatives get what, but rather, that amount is set in the statutes.
- I was appointed as Executor, but do not wish to serve. Do I have to? No, there is no law that requires you to serve as Executor. You may renounce your duty, and the job will pass to the next in line. If there is no next in line, an Administrator will be appointed by the Court.
- I live out of state, can I still serve as Executor? Yes you can. There is no law in New Jersey that disallows you from serving as Executor. In addition, you may not even have to set foot in New Jersey if you hire an attorney to assist you.
- How long will probate take? This question is generally impossible to answer, as the duration depends on the complexity of the estate and what legal and family issues exist. I tell my clients that the average length is 9 months, but it could take at least a year in some instances.
- When do I have to pay NJ taxes? New Jersey Inheritance taxes must be paid within eight (8) months of the decedent’s death. Federal and New Jersey estate taxes are each due nine (9) months of the decedent’s death. Federal and New Jersey income tax returns must be filed for each year that the estate remains open.
- My loved one’s original Will is located in a safety deposit box. How can I retrieve it? This is often a tricky situation. If you have a copy of the Will appointing you as Executor, show it to the bank and they may let you access the safety deposit box. If not, you may have to petition the Surrogate Court to enter an order allowing you to gain access to the box. If this situation occurs, contact an attorney immediately, because they may be able to come to an arrangement with the bank. It is pertinent to make sure that a loved one you trust can gain access to your safety deposit box should something happen to you.
- Will I have to go to Court? For the most part, your attorney will not require your presence at the Surrogates Court. In addition, unless there is some form of litigation, it is likely that no court time will be required at all.
- What do I do with the accounts that contain beneficiary designations, like POD accounts? While you need to keep a record of the amount in those accounts for tax purposes, those accounts likely avoid probate. If there is a direct beneficiary designation, that beneficiary needs only to submit an original death certificate and whatever forms the bank account requires to have those funds released.
- Is a lawyer required to probate a Will? Similar to how an accountant is not required to file taxes, an attorney is not required to probate a Will. With that said, an experienced Elder Law attorney can help you to navigate the difficult probate process and avoid much of the stress. The majority of probates tend to not be quick and easy.
- How much does probate cost? This is the most common question. Some states have a “reasonableness” standard and other states have fixed costs. For example, in California, a $1 million dollar estate will incur fixed probate costs of $46,000.00. New Jersey does not have fixed fees. Quotes from attorneys will vary depending on what issues and circumstances are present in your specific instance. At Hynes Law Group, we believe in giving our clients competitive, fixed rates that will allow the family the peace of mind that they will not be charged any additional fees.
- I’ve now gone through the horror of probate, how can I avoid it for my children when I die? This is a complicated question. The most important thing that you can do is meet with an experienced Elder Law and Estate Planning attorney and let them know that your goal is to avoid or simplify probate. Some methods to avoid probate are to put direct beneficiaries on your accounts and assets and to create a Living Trust.
If you have any other questions or concerns about the probate process, please contact Hynes Law Group at 908-514-8008 or jesse@hyneselderlaw.com. You can also fill out our “contact us” form at http://www.hyneselderlaw.com/contact-us/.
Jesse R. Hynes, Esq.
Hynes Law Group
2 South Avenue East, Suite 200
Cranford, NJ 07016