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Affordable Family Probate
What is Probate?
What is Probate?

Probate is the process where after death the instructions of the Will are completed. Will is admitted to ?Probate? in the County Surrogate. Some individuals make reference to the Surrogate because the Will Clerk. Upon the death of the testator or testatrix (maker of the Will),Guest Posting the probate procedure can begin. This can be a legal process which establishes the genuineness of the Will. It is done by the Surrogate in the county where the testator or testatrix resided during death.

The probate application must contain the following information:

1. the applicant's residence;

2. the name, domicile and date of death of the decedent;

3. the names and addresses of the decedent's spouse, heirs (those eligible for take beneath the laws of interstate succession), and any person named to serve as Executor;

4. the ages of any minor heirs; and

5. the names of the testator's children once the Will was made and the names of children born and adopted following the Will was made, or their children, if any.

To reduce time spent in the Surrogate, it is recommended, and in some counties required, that before an Executor submits the Will for probate the executor?s attorney or executor send the Court:

1) a "data sheet" (described in some counties being an "information sheet" or perhaps a "fact sheet") containing the info needed by the Surrogate to complete the application;

2) a copy of the Will; and

3) a copy of the death certificate.

FILING A PROBATE APPLICATION

Upon the death of an individual, a probate proceeding could be commenced by offering the decedent's (the dead person's ) last Will for probate in the Surrogate's Court of the county in which the decedent was domiciled at death. R. 4:80-1(a). Generally, the Executor nominated in the Will brings the proceeding by filing a verified application with the Court.

Once the applicant files the original Will for probate, the applicant must also file a death certificate (and original with an elevated seal). A filing fee of approximately $150 should be paid. Once the Will, application and death certificate are filed, the Surrogate will review the papers, and if there are no irregularities or objections, admit the Will to probate. Although New Jersey law prohibits admission of a Will to probate within 10 days of the testator's death, an applicant may submit the application form prior to expiration of the 10-day period. If the Will is filed following the 10-day waiting period, many Courts will issue a judgment for probate contemporaneously with the filing of the probate papers.

Qualifying the Executor

After the Will is admitted to probate, the Court will issue letters testamentary to an Executor who has properly qualified to serve. An Executor named in a Will qualifies to serve by filing a form affidavit in which the Executor agrees to perform his / her duties. The nominated Executor must provide a power of attorney to the Surrogate empowering the Surrogate to simply accept service of process of claims contrary to the estate. After the Executor qualifies, the Court then issues letters testamentary.

How is an administrator appointed when there is no Will?

When there is no Will, an administrator, administratrix or personal representative is appointed by the Surrogate's Court. The surviving spouse gets the first right to apply for the positioning of administrator; however, any heir of the decedent could be appointed. When family trust of the heirs seeks to be appointed administrator, all the heirs must renounce their right to be appointed administrator. Usually, a surety bond should be furnished to cover the value of the real and personal property in the estate.

Mailing Probate Notices

Following a Will is admitted to probate, the Executor?s Attorney or Executor must mail within 60 days a notice of probate to the decedent's spouse, heirs and all beneficiaries under the Will. The notice of probate should support the executor's name and address, place and date that the Will was probated, and an offer to furnish a copy of the Will upon request. Within 10 days of mailing the spot the Executor?s Attorney or Executor should file proof service of the notice with the Surrogate's Court. Once notice of probate has been sent and proof of mailing has been filed the probate process is essentially completed.

Completing the probate process should cause only minimal delay, perhaps a few weeks, in administering a decedent's affairs. The price of admitting a Will to probate ought to be limited. Unlike in some other states, the Surrogate's filing fee in NJ is the same regardless of the size of the estate. See Zimiles "Probate is not a Dirty word in NJ" N.J. Lawyer pg. 14 ( July/August 1992)

How do you begin the probate procedure?

The Executor or personal representative could be appointed and the Will admitted to probate in most cases by visiting the Surrogate's Court with the initial Will, certified death certificate, and, if the Will is not self-proven, a minumum of one of the witnesses who signed the Will must prove the signature on the Will.

What type of information must i collect?

The decedent's personal representative should make a list of every one of the next of kin of the one who died, with their amount of relationship, addresses and ages.


What if the Will isn't properly executed?

The Surrogate will advise the non-public representative regarding the proper procedure to be able to allow the Will to be admitted to probate. This process normally involves a formal hearing before a Judge of the Superior Court.

Are unpaid inheritance taxes a lien on property?

Yes, to sell property, you need to obtain "tax waivers" from hawaii Transfer Inheritance 'Tax Bureau, and the waivers should be filed with the County Clerk in the county where the land is located. Land held by husband and wife as "tenants by the entirety" do not need to be reported and may be transferred with out a waiver. Other property may be subject to a lien for unpaid inheritance taxes such as bank accounts and certificates of deposit.

How about federal estate taxes?

In 2009 2009 there is no federal tax due unless the estate exceeds $3,500,000. However, there is a NJ Estate tax for estates over $675,000.

There is also an unlimited federal marital deduction, this means unlimited levels of property could be transferred between spouses without estate of gift taxes.

Just how many Surrogate's Certificates ("Shorts") Will I need?

When may be the Will admitted to probate?

After all the proper forms are filed with the probate clerk, the clerk will make a judgment which admits the Will to probate. The Surrogate then signs the judgment and issues "Letters Testamentary."

What exactly are Surrogate's Certificates used for?

Surrogate's Certificates act as evidence of the authority of the personal representative ( Executor, Administrator, Trustee ) to act. These certificates are essential to accomplish certain tasks such as for example transferring stocks, closing bank accounts, etc.

Must you send copies of the Will to the beneficiaries?

From the time the Will is probated, the Executer has 60 days to mail all beneficiaries a notice that they can be given a copy of the Will, plus a notice giving the specific date and place the Will was entered into probate. See Zimiles "Probate isn't a Dirty word in New Jersey" N.J. Lawyer

Basically, what's the Executor/Administrator necessary to do?

The Executor or Administrator is, in general, necessary to collect and safeguard each of the assets of the estate and finally to pay the debts of the decedent, along with any taxes due, and be able to provide an accounting of his actions to the beneficiaries or heirs. An Executor or Administrator must obtain the necessary legal documents, called either LETTERS TESTAMENTARY (for an Executor) or LETTERS OF ADMINISTRATION (for an Administrator), are obtained through the Surrogate in the county where the DECEDENT (the deceased person) resided during death.

The duties of the non-public representative include:

* - finding the Will and having it PROBATED. Probate may be the legal procedure used to establish the validity of a Will.* - locating and protecting the assets of the estate.* - finding and notifying the heirs.* - paying the debts, expenses, and taxes of the estate from the assets of the estate.* - complying with the requirements of state and federal law.* - distributing property to the heirs in the end proper procedures have already been followed.

Can be an attorney necessary in estate administration?

As a practical matter, it is very difficulty for a nonlawyer to correctly follow the required procedures in administering an estate without the assistance of a lawyer. The personal representative selects the attorney for the estate. You might desire to call your attorney to provide you with further advice as to specific duties and obligations.

Where does the Executor/Administrator have the funds to cover debts?

The Executor may, typically, withdraw around one-half of the funds in the decedent's bank accounts. Generally, the Executor should open an estate bank checking account that can be used to receive and disburse funds.

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