After a loved one has passed away, the last thing a family wants to do is wade through complex financial and legal matters. However, that is precisely what happens for many families at the worst possible moment.
What is Probate?
Probate is the process of legally administering an estate after an individual’s death and handling the distribution of their assets to heirs and beneficiaries. For many, there is a valid will that will set out instructions for this. But often, an individual dies without the benefit of a will or trust, and the estate must be administered through the probate courts. Even if there is a valid will, disputes may arise between heirs and family members. This is when it is essential to have the assistance of a skilled probate lawyer.
What is a Probate Lawyer?
A probate lawyer, or estate attorney, is an attorney who is state-licensed and experienced in estate law. When a loved one dies, a probate lawyer is specifically tasked with assisting executors, family members, and other heirs and beneficiaries of an estate. But there are many other things that a probate lawyer will do.
During the probate process, a lawyer will help with various responsibilities, including
- Identifying the assets of the estate
- Preparing and filing documentation for the court
- Determining whether any taxes are due to the state or federal government and resolving any tax issues
- Collecting the proceeds from life insurance policies
- Getting a valuation and appraisal of assets and real property
- Assisting in the payment of bills and debts
- Assisting with any creditor claims
- Assisting in inheritance disputes
- Transferring assets to heirs and beneficiaries
- Contesting a will or trust
- Handling surcharge actions against a trustee
- Setting up conservatorships and guardianships
- Probate and tax appeals
- Acting as executor or trustee
and other matters.
A probate lawyer will help with various issues and responsibilities during the probate process and can make an overwhelming and time-consuming process more manageable. Your lawyer will also be able to offer crucial advice regarding important estate matters and draft appropriate documents such as wills, trusts, and powers of attorney.
Is Having a Probate Lawyer Necessary?
Having the skill and guidance of a probate lawyer can save an estate a significant amount of money and speed up the probate process. But some estates are small and fairly uncomplicated. Although it is always good to have a professional’s guidance in probate matters, it’s not always necessary. This will depend on how large the estate is, if there is enough money in the estate to pay off creditors and debts, what type of assets are in the estate, and if family members get along reasonably well.
Probate Process in New Jersey
Probate refers to the legal procedure of administering an estate by paying all debts and disbursing property according to the will. New Jersey law requires that a deceased person’s will and testament be filed in probate at the Surrogate’s Office of the county where they reside. The County Surrogate can accept the will and authorize the executor to act in that capacity.
A decedent who dies without leaving a will is deemed to have died “intestate”. An “intestate administration” is the process of administering an estate that has been left to the intestate. This process in New Jersey is managed by the County Surrogate. This process works in a similar way to probate administration. Instead of being called the executor, the administrator is the person responsible for administering an intestate estate. However, in New Jersey, the executor and the administrator’s roles are similar.
If a Will is entered into probate in New Jersey, the state laws require:
- A visit to the Surrogate’s Office in your locality, also known as “Surrogate’s Court”
- Meet with the Surrogate, or an authorized member of their staff
- Provide them with the will
- If the will has not been notarized, bring in witnesses and provide contact information.
- Validating the will by the Surrogate (or their representative).
This process can be completed in a matter of minutes, with many instances. It is also relatively affordable because New Jersey charges only for the length of the will, and not the estate’s value. The process can get more complex in some instances. You may need the assistance of a probate lawyer if there are any complications or you don’t want to attempt to handle this on your own.
Will Challenges in New Jersey
To contest a will in New Jersey, you must have “legal standing”. People with standing are generally the people and groups named in the will, as well as those who would have inherited the estate from the deceased if there was no will – the heirs at law. Any person named in a previous Will will also be considered to have standing if the Will is introduced into probate and reduces or eliminates assets that were intended to be distributed to them.
Will challenges in New Jersey often stem from the claim that the deceased was unable to make or modify a Will. This challenge is usually based on a claim that a decedent was suffering from Alzheimer’s, dementia, or another illness or condition that made it difficult for him or her to fully understand their assets and the effects of the actions taken.
Another way to contest the validity of a Will is to claim that the decedent was subjected to undue influence in writing or making the will. An undue influence claim is an assertion that the decedent was influenced in writing or rewriting the will by another person in a private relationship with the deceased to the extent that the will reflects the wishes of that other individual and not the decedent.
If you are dealing with the estate of a loved one or have questions about any probate matters, the skilled New Jersey probate lawyers at the Matus Law Group can help. Contact them or call them at (732) 281-0060 for a confidential consultation.