Planning your estate is the best way to ensure that your property is safe and passed on to the people who you want to receive it. There are several steps in securing your possessions after death and one is understanding the probate process.
What Is Probate?
Probate is the name of the process which takes place shortly after someone dies. In New Jersey, this takes place no sooner than eleven days after the death. The process entails validating the will, identification and subsequent appraisal of the property of the decedent, paying outstanding debts and appropriate taxes, and distributing the property according to the will. The probate process involves lawyer fees and court fees which are taken from the estate property.
The probate process begins with the appointed executor of the will filing paperwork, including a certificate of death and Application for Probate, at the Surrogate’s Court in the county of the decedent’s residence at the time of death. The executor of the will was either named by the decedent prior to his or her death or is appointed by a judge. Filed paperwork will include a will—if the decedent created an eligible will prior to his or her passing—which must be validated by the probate court along with a list of possessions, debts, and inheritors. Following the validation of the will creditors and family members are notified by a Notice of Probate which is distributed by the executor.
If the decedent died without a will, probate will follow New Jersey’s laws of intestate succession, which provides a roadmap for how the estate will be distributed to living relatives based on the family’s circumstances. For example, if the decedent had children but no spouse, the children would automatically inherit their parent’s property.
During the Probate Process
The executor of the will is responsible for managing the assets during the probate process and is tasked with getting valuables appraised and, if necessary, selling property to pay off debts and taxes. In New Jersey, if a beneficiary has a developmental disability the executor is required to post a bond, except in cases of exemption, in accordance with Ronnie’s Law. Sometimes the probate process lasts up to a year, but once the proceedings are completed, the court allows the executor to pay debts and divide the rest among the inheritors named in the will.
Assets That Do Not Pass Through Probate
In some cases the probate process can be completely avoided, such as in cases that involve very small estates. The decedent’s spouse can file an appeal if there is a will and the total assets value less than $10,000, and in doing so avoid probate. An Affidavit of Surviving Spouse can be filed if there is no will and the estate is worth less than $20,000. In cases where there is not a surviving spouse or a will and property is valued at less than $5,000, the next of kin can file an appeal.
Additionally, even large estates with effective estate planning can keep particular assets from passing through probate by utilizing various estate planning vehicles like trusts.
Occasionally, a will is not properly executed and probate is denied by the Surrogate Court which then enters an Order of Doubt or Difficulty and the process is moved to the state Supreme Court. There is a lot to deal with surrounding the death of a loved one, so whether you want to prepare your estate or prepare to enter probate on behalf of a loved one, give Matus Law Group a call to have all of your questions answered!