what is probate
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What is Probate?

Probate Case Study:
President Abraham Lincoln

Let's start at the very beginning and answer the question: What is probate?

Probate is the first step in the legal process of administering the estate of a deceased person, resolving all claims and distributing the deceased person's property under a will. A Probate Court, or Surrogate Court, decides the legal validity of a testator's will and grants its approval by granting probate to the executor. The probated will then becomes a legal document which may be enforced by the executor, in the Courts if necessary. A probate also officially appoints the executor as having legal power to dispose of the testator's assets in the manner specified in the will.

Letís go a little further and establish what is the probate process in New Jersey. New Jersey probate refers to the process of establishing whether a written instrument constitutes the valid and legally binding Will of the decedent and distributing the decedentís estate to the beneficiaries of the Will.   New Jersey probate law requires proof of the existence of a Will, and if no Will exists, then proving the legal heirs to the decedent.  A written Will has no legal effect until admitted to probate.  An estate with a Will accepted for probate is referred to as a testate estate while an estate without a valid Will is referred to as intestate estate.  New Jersey Probate is a civil action brought before a county Surrogacy Court although certain proceedings are brought before the Superior Court.

The process of probate typically includes identifying and inventorying the decedentís property, accounting of the estate, and distributing assets of the estate in order to pay taxes and creditors. A common misconception of New Jersey probate law is the belief that if there is a valid Will, the probate process can be avoided.  While a valid Will makes things quite a bit easier and speeds up the process, probate is still generally required for assets or property of the decedent with the following exceptions:  life insurance policies, IRAís, annuities and retirement accounts, which are passed down outside of probate to the named beneficiaries of those accounts.  Jointly held assets or property with a right of survivorship also is passed to the surviving joint owner by operation of law outside the probate process.  Finally, transfer on death and paid on death accounts typically do not require probate as survivors can access these accounts.

Lets go a little further to describe some of the requirements of New Jersey Probate

The first step under New Jersey probate law is the designation of a fiduciary who takes the form of an administrator or executor of the Will, also called a personal representative, who will then oversee the probate of the Will and distribution of the estate. The executor, who is usually designated by Will, has a fiduciary duty to the beneficiaries of the Will and is very often a family member of the decedent. The fiduciary duty requires the personal representative to act in the best financial interest of all beneficiaries of the will, such as keeping money in an interest bearing account and to treat all beneficiaries equally. Not complying with the fiduciary duties may allow interested persons to petition for the removal of the personal representative and hold the personal representative liable for any harm to the estate.

Even if named in the Will, under New Jersey probate law, the county Surrogate Court generally must approve the executor and will issue Letters Testamentary, a formal certificate reflecting designation that the Will which confirms the authenticity of the personís appointment.  If no valid Will exists, an administrator or personal representative is appointed by the court to oversee the process and will be issued a formal certificate, also called a ďletterĒ. The executor and/or administrator is legally responsible for ensuring that all legal duties are satisfied with regards to creditors, taxation and distribution to beneficiaries.

The executor and/or administrator will typically hire an attorney who will share the executors and/or administrators fiduciary responsibility.  New Jersey probate law requires the executor to file the Will for probate with the county Surrogate Court in which the decedent resided at his/her death.  Once a personal representative is appointed, they must open an estate account from which all claims against the estate are to be paid and so that title may transfer from the decedent to the estate and its beneficiaries.  A tax identification number must be acquired in order to perform these steps because upon an individualís death their social security number becomes invalid and the estate represents a separate legal entity.

Under New Jersey probate law, an executor must provide the original Will as well as a certified copy of the death certificate to the county Surrogate Court where the decedent resided at death. Some Wills are self-proving and require no further action. However, if the Will is not self-proving, witnesses to the proper execution of the Will must be provided to fill out deposition forms for that county.  If a photocopy of the Will is to be admitted to probate, there must be a verified complaint filed with the Superior Court which must establish that there is clear and convincing evidence that the decedent did not destroy the original Will. If a photocopy cannot be admitted and the original cannot be located, the heirs of the estate must file for intestate administration. The next of kin will have equal priority in becoming an administrator if intestate administration is required, if there is an agreement among the parties as to who should be the administrator, all equal class members must execute renunciations and the

The New Jersey Superior Court, Probate Part, must hear matters in which the Surrogate's Court may not act. These arise when:  (1) a caveat has been filed with the Surrogate's Court before entry of judgment; (2) a doubt arises on the face of a Will or a Will has been lost or destroyed; (3) the application is to admit to probate a writing intended as a Will; (4) the application is to appoint an administrator pendente lite or other limited administrator; (5) a dispute arises before the Surrogate's Court as to any matter; or (6) the Surrogate certifies the case to be of doubt or difficulty.

In order to conclude a New Jersey estate, an accounting must be given to all beneficiaries as well as the Surrogate Court. A release and refunding bond signed by each beneficiary is filed with the Surrogate, in which all beneficiaries acknowledge their receipt of their share in the estate and discharge the executor or administrator from future estate obligations, and accept pro rata responsibility for any debts incurred after receiving distribution.

Feel free to contact John F. Renner, an experienced New Jersey probate attorney, to help guide you through the NJ probate process. 

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Copyright © 2000/2011 by New Jersey Attorney, John F. Renner. All rights reserved. Any reproduction of all or any part of this document, without prior permission of John F. Renner, Esq. is expressly prohibited.