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Does a Will Have to Be Probated in New Jersey?

Last updated on: February 2, 2024

Probate is a legal process that takes place after someone passes away. It involves administering the distribution of a deceased person’s assets and resolving debts or claims against their estate. In New Jersey, the probate process can be complex and time-consuming. It’s essential to understand how probate works to facilitate a more efficient and effective process, whether you’re a beneficiary or a personal representative.

If you or your loved ones are facing concerns regarding your will or estate, seeking the assistance of an experienced New Jersey probate attorney is crucial. At Matus Law Group, our skilled team of estate planning attorneys can guide you in tackling the New Jersey probate process and other estate planning matters such as trusts, wills, and disputes. We can help you navigate the legal processes involved and assist you in moving forward. Contact us today at (732) 281-0060 to discuss your situation.

Definition of Probate

Probate is the court-supervised process of identifying, gathering, and distributing a deceased person’s assets, paying any outstanding debts or taxes, and ultimately transferring ownership of the assets to the beneficiaries named in the decedent’s will or determined by state law if there is no valid will. The primary purpose of probate is to ensure that a decedent’s estate is properly administered, their debts are paid, and their assets are distributed according to their wishes or the law.

New Jersey Probate Law Overview

In New Jersey, the state’s probate laws govern the probate process, which outlines the steps and procedures required to administer an estate. Some of the critical aspects of New Jersey probate law include:

  • Appointment of a Personal Representative: If the deceased individual had a will, the named executor is responsible for initiating the probate process by filing a petition with the Surrogate’s Court in the county where the decedent resided. The court will appoint an administrator to handle the probate process if there is no will.
  • Probate Formalities: In most cases, New Jersey requires estates to undergo a formal probate process. This involves submitting the decedent’s will (if there is one) and other necessary documents to the court, notifying creditors and beneficiaries and providing an inventory of the decedent’s assets.
  • Estate Administration: The executor or court-appointed administrator is responsible for taking inventory of the decedent’s assets, identifying and notifying creditors, paying any taxes or debts owed, and distributing the remaining assets to the beneficiaries. They must also file any necessary tax returns and accountings with the court.
  • Small Estates: New Jersey provides a simplified probate process for small estates under a specific value, which is currently set at $50,000. This expedited process requires fewer filings and involves a shorter waiting period for asset distribution.
  • Property Transfers: The probate court can authorize the transfer of real property to the named beneficiaries or heirs, such as a home or other real estate. This requires the completion of legal documents and possibly a court hearing.

Navigating the probate process in New Jersey can be a complex and stressful endeavor, but understanding the important components of the state’s probate laws can help reduce the hassle and ensure the decedent’s estate is administered smoothly and efficiently. Seeking competent legal advice can also be beneficial in navigating the probate process.

The Probate Process in New Jersey

Probate is the legal process that occurs after a person’s death to distribute their estate as specified in their will. In New Jersey, this process is supervised by the Surrogate Court in the county where the deceased resided at the time of their death. Here is a detailed breakdown of the probate process in New Jersey.

Initiating the Probate Process

In New Jersey, the probate process begins after the individual’s death. The first step is filing the will with the appropriate Surrogate’s Court. The court then reviews the will to ensure it is valid and meets all legal parameters, such as being signed and witnessed properly.

It is crucial to initiate the probate process after the person’s death as soon as possible. The law requires that a will be probated within ten years of the testator’s death, but the process should begin sooner to ensure the proper distribution of assets and settling of debts.

If the deceased did not leave behind a will, the court holds jurisdiction to determine how the estate assets will be distributed per New Jersey’s intestacy laws. In such cases, the court appoints an administrator to handle the estate’s affairs.

Appointing an Executor or Administrator

A crucial part of the probate process is the appointment of an executor or an administrator. The person assigned to this role handles the deceased’s estate and ensures that all their assets and liabilities are appropriately managed. 

In most cases, the deceased would have designated an executor in their will. This person is commonly a family member or attorney experienced in legal matters or someone the deceased had confidence in to manage their estate. 

The appointed executor must submit the will to the Surrogate Court to get the authority to administer the estate:

  • A certified death certificate
  • The original will (including codicils, if applicable)
  • If no will exists, a list of assets solely in the decedent’s name with no beneficiary designation (e.g., stocks, bonds, bank accounts, real estate, automobiles, etc.)
  • Identification (e.g., driver’s license, passport)
  • If no will exists, a Surety Bond (Administration and Executor bonds or Probate Bonds for estate Administrators) may be necessary if no will exists.

The court appoints an administrator if the deceased did not name an executor or there is no will. This individual is responsible for handling the estate similarly to an executor, and their primary goal is to ensure that the assets are distributed according to the intestate laws.

Notifying Heirs and Beneficiaries

Once the executor or administrator has been appointed, they are tasked with notifying all heirs and beneficiaries of the estate. In New Jersey, this includes providing notice of probate to all interested parties, including the deceased’s spouse, children, and other close relatives.

Additionally, all beneficiaries listed in the will must receive a copy of the will and an explanation of their entitlements. It is crucial that all concerned parties are notified to ensure that the estate is distributed fairly and according to the deceased’s wishes.

Managing Estate Assets and Debts

The executor or administrator is responsible for collecting and safeguarding the deceased’s assets, including bank accounts, real estate, and personal belongings. They must also determine the value of these assets and prepare an inventory for the court.

Besides managing assets, the executor or administrator is also responsible for settling any debts or liabilities the deceased may have incurred. This can include outstanding bills, taxes, and any loans the deceased had taken. The executor or administrator must use the estate’s funds to pay off these debts before the assets can be distributed to the beneficiaries.

Distributing Estate Assets to Beneficiaries

Once all estate assets have been collected, valued, and debts settled, the executor or administrator can begin distributing the assets to the beneficiaries. The distribution must be carried out according to the terms outlined in the will or, in cases where there isn’t a will, according to the intestate laws of New Jersey.

This process may involve selling some assets to generate funds to be distributed or transferring the property titles to the appropriate beneficiaries. The executor or administrator must carefully record each transaction and provide an accounting to the court.

Closing the Estate

When all assets are distributed and the necessary paperwork completed, the executor or administrator must file a final accounting with the Surrogate Court to close the estate. This document should include a comprehensive account of all transactions made during the probate process.

Once the court approves the final accounting, the estate is considered closed, and the executor or administrator is formally discharged from their duties. It is essential to remember that the probate process can be lengthy and complicated. However, understanding how the process works in New Jersey will help ensure a smooth and organized affair when handling a deceased’s estate.

The Probate Process in New Jersey Details
Initiating the Probate Process File the will with the appropriate Surrogate’s Court, review for validity, and ensure proper initiation within ten years of the testator’s death.
Appointing an Executor/Administrator Assign a responsible individual to manage the deceased’s estate, either as per the will’s designation or by court appointment.
Notifying Heirs and Beneficiaries Notify all interested parties, heirs, and beneficiaries of the estate, providing copies of the will and explanations of entitlements.
Managing Estate Assets and Debts Collect, safeguard, and value the deceased’s assets, settle outstanding debts, including bills, taxes, and loans.
Distributing Estate Assets to Beneficiaries Distribute assets as per the will’s terms or intestate laws, which may involve selling assets or transferring property titles.
Closing the Estate File a final accounting with the Surrogate Court, detailing all transactions, and receive formal discharge once approved by the court.

How to Avoid Probate in New Jersey

Probate is a legal process that involves the authentication of a deceased person’s will, the appointment of an executor/administrator, and the estate administration. In some specific circumstances, an estate may not need to be probated in New Jersey. 

There are several circumstances in which probate may be avoided:

  • An estate is considered a small
  • Assets are held in joint tenancy or payable-on-death accounts 
  • Assets are held in trust or involve life insurance and retirement accounts.

If you are unsure about whether probate is necessary for your case, it is recommended that you consult with an experienced attorney to guide you through the process.

Small Estate Affidavit

In New Jersey, if the total value of a deceased person’s estate (excluding real estate and assets that pass outside of probate) is $50,000 or less, the estate can be settled without going through the formal probate process. This is called a small estate affidavit procedure. To use this procedure, the inheritor of the decedent can prepare and sign an affidavit stating their relationship to the deceased person and the estate’s value. The small estate affidavit must be provided to the institution (such as a bank) holding the deceased person’s assets, which will then transfer those assets to the person named in the affidavit. This simplifies the process of distributing the deceased person’s assets and can save time and money for the estate.

Transfer-on-Death and Payable-on-Death Assets

Transfer-on-death (TOD) and payable-on-death (POD) accounts are set up during the account holder’s lifetime to have the assets in the account pass directly to a designated beneficiary when the account holder dies. These assets do not require probate, as they are considered non-probate assets. Such accounts include bank accounts, investment accounts, and savings bonds. By naming a beneficiary on these accounts, the account holder ensures that the assets will transfer outside the probate process, saving time and money. It is essential to keep beneficiary designations current to ensure that the assets are distributed according to the account holder’s wishes.

Jointly Owned Assets with Right of Survivorship

Jointly owned assets with the right of survivorship, such as joint bank accounts or real estate held in joint tenancy, automatically pass to the surviving co-owner upon the death of the other co-owner. This process occurs outside of probate and does not require any court involvement. Assets held in joint tenancy bypass the probate process because, by law, the surviving joint tenant immediately becomes the sole owner of the entire property upon the death of the other joint tenant. This form of ownership can be used for real estate, financial accounts, and other property types, providing an efficient and straightforward way to pass assets to a surviving co-owner.

Assets Held in Trusts

Assets held in a trust, such as a revocable living trust, do not require probate. The trust document designates a trustee to manage the assets and distribute them to the named beneficiaries after the person’s death, according to the terms of the trust. Since the assets are held in the trust and not the deceased person’s name, there is no need for probate to transfer the assets. This method can ensure a more private and efficient transfer of assets, as well as avoid probate court fees and delays.

Life Insurance and Retirement Accounts

Life insurance policies and retirement accounts, such as IRA and 401(k) accounts, often require the account holder to designate a beneficiary to receive the proceeds of the policy or account. When the account holder dies, these accounts are paid directly to the designated beneficiaries, bypassing the probate process. These assets are not considered part of the deceased person’s estate and do not need to be included in the probate process. It is crucial to keep beneficiary designations current to ensure that the assets are distributed as intended when the account holder dies.

Understanding Probate Fees and Timing in NJ

Navigating the probate process in New Jersey involves understanding specific fees and timelines that are essential for the efficient administration of an estate. The probate process formally begins with the validation of the decedent’s will by the Surrogate’s Court, which must occur in the county of the decedent’s residence at the time of death.

In New Jersey, the cost to probate a will is standardized, with fees typically set at $100 for the first two pages of the will and $5 for each additional page. Persons seeking additional short certificates, which are legal documents evidencing the authority of the executor, can expect to pay $5 each. While this fee schedule is consistent across counties, it is always advisable to verify with the local Surrogate’s Court, as there might be other incidental fees.

It is crucial to present the original will for probate, as copies will not be accepted. The need for the original document helps ensure the will’s authenticity and serves as a safeguard against potential fraud. New Jersey law stipulates a waiting period before the probate process can begin, specifying that probate cannot commence until the 11th day after death. This allows time for any potential challenges or caveats to be filed by interested parties.

Once the waiting period has passed, the initial probate steps involve the executor presenting the original will, along with a certified death certificate and a list of heirs, to the Surrogate’s Court. Upon validation of the will, the executor will sign an Application for Probate and other necessary documents to be granted the authority to act on behalf of the estate.

After the formal probate process has begun, the executor is required to notify beneficiaries and potential heirs, settle the decedent’s debts and taxes, and distribute the estate according to the will. A Child Support Judgment search is also required for each beneficiary to ensure compliance with state laws. Executors should be aware that some New Jersey counties may have additional local rules or requirements, such as a different process for handling estates with charitable bequests, which may necessitate notification to the Attorney General’s office.

Does a will have to be probated in New Jersey?

If a decedent has remaining probate assets solely in their name, their will needs to be probated regardless of the estate’s value. Probate assets refer to the assets of a deceased person that are subject to the probate process. In New Jersey, probate assets include any property that is owned solely by the deceased person, without any co-owners or designated beneficiaries. These assets typically include real estate, bank accounts, investments, and personal property such as jewelry and artwork.

The probate process is initiated to facilitate the legal and formal transfer of the decedent’s assets to their beneficiaries.

Creating a Valid Will in New Jersey

A will is a legal document that provides instructions on how a person’s assets and property should be distributed after death. Creating a valid will in New Jersey is important, as it helps to ensure that your wishes are carried out according to your specific desires. 

Requirements for a Valid Will

In New Jersey, there are specific requirements for creating a valid will. These requirements include:

  • Age: A testator who makes a will must be at least 18 years old.
  • Testamentary Capacity: The testator must possess the mental capacity to create a will, which means they understand the extent of their property, the identities of their potential heirs, and the nature of creating a will.
  • Intent: The testator must intend to create the document as their last will and testament.
  • Witnesses: In most cases, a will must be signed by at least two witnesses who attest to the testator’s mental capacity and intent. These witnesses must not be beneficiaries of the will to prevent any conflicts of interest or issues of undue influence.
  • Writing: A valid will in New Jersey must be in writing, either typed or handwritten.
  • Signature: The testator must sign the will or direct someone else to sign on their behalf in the presence of the witnesses.

These requirements for establishing a valid will in New Jersey must be taken into account to make sure the will is legally binding and avoid any risks of challenges.

Types of Wills Accepted in New Jersey

There are two main types of wills accepted in New Jersey:

  • Witnessed wills: These are the most commonly executed wills in the state. A witnessed will is a written document signed by the testator and at least two witnesses, as previously described. It is recommended to use an attorney to draft a witnessed will to ensure it meets all legal requirements.
  • Holographic wills: A holographic will is a handwritten will authored and signed by the testator without the presence of witnesses. New Jersey is one of the few states that accept holographic wills as long as the testator’s handwriting can be verified. However, it is not recommended to rely on a holographic will as your primary estate-planning tool, as it can be more easily contested in court.

Understanding what makes a will valid is important to make sure that your wishes about your assets are honored and to avoid subjecting your estate to intestacy laws.

A will is a legal document that outlines an individual’s wishes concerning the distribution of their assets, payment of debts, and care for their dependents upon death. When creating a will, it is essential to seek legal advice to ensure the document is prepared correctly and adheres to relevant laws and regulations. 

An attorney can provide valuable guidance on various aspects of creating a will, such as: 

  1. Identifying assets and beneficiaries: An attorney can help determine which assets should be included in the will and who should be named as beneficiaries. 
  2. Providing information on New Jersey’s probate laws: An attorney can help you navigate the state’s laws to ensure your will complies with all legal requirements. 
  3. Drafting the will: An attorney can assist in preparing a legally sound document that accurately reflects the client’s wishes and protects their interests. 
  4. Ensuring the will is appropriately executed: A will must be executed according to specific formalities to be legally valid. An attorney can guide the client through the signing and witnessing process to ensure the will’s validity.

Seeking legal advice when creating a will in New Jersey is crucial to ensure that the will is properly drafted, executed, and legally valid, and to prevent potential legal issues during the probate process.

Probate matters are legal processes that generally relate to administering a deceased person’s estate. This can include, among other things, the validation of wills, the distribution of assets and property, resolving debts, and handling any contests to the deceased’s will. Probate matters can be complicated, time-consuming, and emotionally charged. Therefore, seeking legal assistance during this process is crucial to ensure all legal requirements are met and the deceased’s wishes are protected.

Working with an Attorney During the Probate Process

When an individual dies, their estate must go through the probate process. The deceased’s assets are distributed during this time, and any outstanding debts are settled. Dealing with the complexities of probate can be overwhelming for grieving family members, and having the guidance of a knowledgeable attorney can make all the difference.

Some of the ways an attorney can assist in the probate process include: 

  1. Administering the estate: This can involve handling the paperwork and court filings, identifying and gathering assets, and managing any ongoing business affairs of the deceased. 
  2. Ensuring proper distribution of assets: An attorney can ensure that assets are distributed according to the terms of the will and in compliance with state law. 
  3. Settling debts: An attorney can help identify and resolve any outstanding debts to ensure the estate is properly settled. 
  4. Addressing tax issues: An attorney can assist in calculating and paying any taxes owed by the estate.

The probate process in New Jersey can be complex and involve numerous legal requirements and deadlines. An attorney can assist in ensuring that these factors are handled, which can help prevent delays and complications in the probate process.

Representation in Will Contests and Estate Litigation

Will contests and estate litigation may arise when someone challenges the validity of a will, the distribution of assets, or the administration of the estate. In these situations, representation by a skilled attorney is crucial to navigate the legal complexities and protect the interests of the deceased and their beneficiaries.

An attorney can represent either the party contesting the will or the personal representative defending the will, providing effective advocacy and negotiations to resolve the dispute. In some cases, this may involve court proceedings, in which the attorney can present evidence and arguments to support their client’s position.

Consulting an Attorney for Beneficiaries’ Rights

Beneficiaries of a will, including family members, friends, or charitable organizations, have specific rights and protections under the law. Consulting an attorney can help beneficiaries understand their rights and ensure they receive the assets or property they are entitled to.

Some issues that might require the assistance of an attorney for beneficiaries include: 

  • Interpreting the terms of the will: An attorney can help beneficiaries understand the language of the will and what they are entitled to receive. 
  • Challenging the will: If a beneficiary feels they have been unfairly treated or the will is invalid, an attorney can help them challenge the terms of the document. 
  • Ensuring the executor fulfills their duties: If an executor is not properly administering the estate or distributing assets, a beneficiary may need legal representation to ensure the terms of the will are followed.

Probate matters can be intricate and challenging, making it essential to have proper legal representation to ensure the deceased’s wishes and beneficiaries’ interests are protected. From drafting a will to the probate process and resolving disputes, seeking the guidance and expertise of an attorney is invaluable.

Getting the Help of An Experienced Probate Attorney from Matus Law Group

The legal complexities surrounding the probate process can be overwhelming. Whether you are a personal representative of the deceased or a beneficiary, it is important to seek the assistance of an experienced attorney who is knowledgeable with probate in New Jersey. 

The Matus Law Group, led by experienced New Jersey probate lawyer Christine Matus, is here to help. Our team of dedicated attorneys has over 20 years of experience providing top-notch legal representation for probate litigation, wills and trusts, and other related matters. We understand the intricacies of New Jersey’s probate process and are committed to ensuring that your rights are protected. Contact the Matus Law Group at (732) 281-0060 to speak with an experienced attorney about your probate concerns today.

Christine Matus

Christine Matus
Christine Matus

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