What is Probate?
Probate is known as the legal process by which a decedent’s estate is transferred to his/her heirs or beneficiaries. If the deceased person created a will, then the person is said to have died testate. When this is the case a New Jersey probate court determines the validity of the Will. There may have been multiple Wills created (for various reasons) and the court's job is to determine which is the legal one to use according to law. The court will also hear any objections to the Will, makes sure the creditors are paid and assures that the property remaining is distributed according to the terms and conditions of the will.
What is an Executor?
The Will names the person (or sometimes the institution) that will carry out the wishes of the deceased. This person is call the Executor whose appointment is confirmed by the issuance of Letters Testamantary by the county surrogate. (if the person appointed is a female then the operative term is Executrix). The executor is in charge of the probate process and is accountable to the beneficiaries and must perform his or her duties in a legal and fair manner. It is possible for the court to appoint a substitute Executor if it feels the current Executor is not capable. The Executor is entitled to receive a commission for doing the work.
What is an Administrator?
A person who dies intestate, has passed on without leaving a will. In this case the court will appoint an administrator to handle the estate. The appointment of an administrator is confirmed by the surrogate issuing Letters of Admnistration. The administrator is obligated to distribute the estate according to New Jersey intestacy laws. A distribution occurs only when all debts, taxes and administration costs have been paid.
Where do I Probate a Will?
In New Jersey a Will is probated in the county where the decedent died.Each county has a surrogate's office whose purpose is to assist the public in admnistering the probate of decedents' estates.
What is the Probate Court?
The Superior Court of New Jersey has a dedicated division for administering the assets of decedents' estates. This division is known as the Probate Part, and comes under the umbrella of the Superior Court of New Jersey, Chancery Division.
Are all Assets Subject to Probate?
No. Some assets transfer automatically at the death of an owner with no probate required. The most common kinds of assets that automatically transfer outside of the probate process include
- Joint Tenancy assets. When one joint tenant dies, the surviving joint tenant becomes the owner of the entire asset, without the need for a court order. This is called "right of survivorship." For example, if a house is owned this way, "Jane Doe and John Doe, as joint tenants," and Jane dies, John owns the entire house.
- Tenancy by the Entirety or Community Property With Right of Survivorship. These are forms of property ownership that function like joint tenancy, in that the survivor owns the entire property at the death of the other tenant, but are only available to married couples.
- Beneficiary Designations. Retirement accounts and life insurance policies have named beneficiaries. Upon the death of the account or policy owner, these beneficiaries are entitled to the assets in the account or the proceeds of the policy.
- Payable on Death Accounts/Transfer on Death Accounts. Bank and brokerage accounts can have designated beneficiaries, too. The account owner can fill out forms to designate who should recieve the account assets after their death.
What Documents do I need to Probate an Estate?
The following is a list of documents and papers that could be essential for settling your estate when you pass away. Keep them in a safe place and make sure your family knows where they are. It may also be helpful to keep a list of these documents for the executor of the estate.
- Checking/Savings account numbers and the names of your banks
- Motor vehicle titles
- Records from your church or religious affiliation
- Real estate deeds
- Installment loans and promissory notes
- Safe deposit box location, number and key
- Birth certificate
- Social Security card or number
- Stocks and bonds
- Marriage / divorce records
- Pension and annuity records
- Veterans records, including discharge papers
- Insurance policies
- Union / company life insurance papers
- Recent federal and state income tax returns
- Information on health benefits and insurance
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