Understanding the Estate and Probate Administration Process in New Jersey

The Concept of Probate

Probate is a civil action to establish that a certain legal document (or documents) were intended by its creator (the testator) to be his or her Last Will and Testament to determine whether this instrument is valid under the NJ probate law. Probate generally involves, among other things, an examination of the document(s) to determine the following:

(1) if the instrument was executed in compliance with the formalities of the state law;

(2) if the offered instrument was intended to be the testator’s Last Will and Testament;

(3) whether the testator had the requisite mental capacity and understanding to execute his or her Last Will; and

(4) whether any part of the instrument purporting to be a testator’s may be invalid and ineffectual because it is a product of fraud, mistake or undue influence.

When You Need an Experienced and Knowledgeable Estate Administration Attorney and Probate Lawyer in New Jersey, Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright is Ready to Help You

The death of a person is devastating, especially when that person is someone near and dear. A family needs to deal with its grief, yet the world moves forward and demands that estate and probate obligations be met and affairs finalized.

There are bills to pay and property to transfer. The language and intent of the will and/or trust seem clear, but you don’t know where to begin or exactly what to do.  If you’re feeling stressed, confused, or unsure and want the advice and reassurance of an experienced and caring professional, Fredrick P. Niemann, Esq. and the Hanlon Niemann & Wright law firm can help.

If you’re an executor, administrator, or beneficiary of an estate in probate, we’ll answer your questions, help resolve issues you may be confronting, coordinate the transfer of assets to beneficiaries, pay bills, and file income, estate, and inheritance tax returns. If you’re a family member whose loved one died without a will, we’ll help you understand the process required to finalize their estate in a timely and professional manner.

We’re experienced NJ estate administration attorneys and probate lawyers who have helped individuals and families like yours through the maze of New Jersey, multi-state and international estate probate laws.  Call Fredrick P. Niemann toll-free at (855) 376-5291 or e-mail him at fniemann@hnlawfirm.com.  He welcomes your inquiries.

Estate Administration and Probate

Understanding the Probate and Estate Administration Process in New Jersey

Probate is a judicially supervised process for confirming the legal validity of a decedent’s Last Will and Testament, gathering his or her property, investments, and assets, paying off creditor bills and taxes, and distributing assets to the named beneficiaries. Probate is necessary when a person dies with both a valid Last Will and with assets titled in his or her name individually. Assets in a living trust, revocable trust, irrevocable trust, property that is jointly owned or with a beneficiary designation does not go through the probate process in this state. Probate has a bad reputation. Sometimes rightfully so, but not always.

When an individual passes away and has signed a Last Will, an executor is appointed to probate and administer his or her estate.  In the absence of a will, an administrator is appointed by the court under New Jersey Probate Law to administer the estate of a deceased person.  Both positions, executor or administrator involve(s) being the representative of the estate charged with the legal responsibility to ensure that all required steps are taken to comply with New Jersey probate laws regarding creditors, taxation, and the distribution of estate assets to beneficiaries.

In New Jersey, the executor must file the original will for probate with the Surrogate of the county in which the decedent resided at the time of his or her death. Only an original Will can be admitted to probate without involving a judge of the Superior Court of New Jersey. If the executor cannot locate the original Will but has a copy of what is believed to be the decedent’s original Last Will, then he or she needs to file a legal proceeding in the Superior Court to admit a copy of the Will to probate. The county will not admit a copy of the Will to probate without a judge’s approval. After the will is admitted to probate, the executor will open an estate bank account from which all debts and claims against the estate are to be paid. The ownership of property and estate assets is transferred into the name of the estate or the beneficiaries of the estate, as appropriate. In order to undertake these steps, an estate tax identification number (commonly called a Federal Tax ID number) is acquired because an individual’s social security number becomes void upon death. In addition, the executor of the probate estate must file a variety of forms with the Internal Revenue Service and the County Surrogate’s Office to ensure that he or she is not held personally liable for the debts of the estate.

How Probate and the Probate Process Works in New Jersey / New Jersey Estate Administration and Probate Laws

What Qualifies as an “Estate”

Under NJ law, an estate consists of all property owned by a deceased person at the time of his or her death and prior to its distribution in accordance with the terms of a will or trust, or, when there is no will or trust, in accordance with the law of intestate succession in New Jersey.  The process of estate administration and probate can be simple or more complicated. I’ll explain later in this page. Several things must happen during probate.

• The will must be confirmed as valid and properly executed.
• The property covered by the will or trust must be identified, verified as being owned by the decedent, and valued.
• The property of the decedent must be distributed to the named beneficiaries as instructed under the terms of the Last Will.
• Creditors of the decedent must be identified, given the opportunity to file their claims against the estate and ultimately paid.
• Fees and taxes for administration of the estate must be established and paid.
• The assets of the estate must be distributed to heirs and beneficiaries.

We can explain the ins and outs of New Jersey probate to you in simple, plain English.  To learn more about probate in New Jersey, go to our page entitled “Understanding the Probate Process in NJ”. You’ll get a good overview of the subject.

Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright is a trusted and experienced New Jersey estate lawyer who can provide you with information on the ways to efficiently navigate the probate process and the County Surrogate’s Office.

Superior Court Jurisdiction Over All Probate and Estate Administration Issues

As a general proposition, the Superior Court has full authority to

“hear and determine all controversies respecting wills, trusts and estates, and full authority over the accounts of fiduciaries, and also authority over all other matters under Title 3B of the New Jersey Statutes (Administration of Estates—Decedents and Others). Further, the Superior Court has jurisdiction to hear disputes arising before the county surrogate and to review any order, determination, or judgment of the Surrogate’s Court.

The Superior Court also has ancillary jurisdiction over the real and personal property of a decedent located in New Jersey that is/was owned or in possession of at the time of death by a non-resident decedent who dies intestate, meaning without a will or trust.

A Will is the Cornerstone of New Jersey Estate Administration and Probate

A Will is a legal document which sets forth in writing what happens to your property upon death. It can also address other matters of importance to you after you’re gone.

A Will in New Jersey must be signed in the presence of two (2) witnesses, eighteen (18) years of age and over.   A Will must also name an Executor, who is the person who distributes the property to your beneficiaries as part of New Jersey estate administration, pays any outstanding bills after death and carries out your instructions as specified in the Will.  Until death, a Will has no legal effect.

How to Choose an Executor For Your Estate

Actual Client Testimonials

Formalities of a Will Under New Jersey Probate Laws

Search to Locate the Will to Begin the Estate Administration Process

So, where do you begin to find a will? The best place to start is where the deceased kept his/her important papers.  If it is not there, look in drawers, cabinets or “secret” places.  If the deceased had a safe deposit box, contact the bank where the box is kept and make an appointment to open the box in the presence of a bank officer.  If there is a Will in the box, it will be released to the named Executor identified in the Will.  But beware, check with your bank on how to retrieve items in a safe deposit box. Chances are they will make it tough so ask the manager what you must do to gain access.

What is a Self-Proving Will, and What is its Place in Estate Administration?

A Self-Proving Will can be easily probated with the surrogate’s office as part of the estate administration process.  A Self-Proving Will contains an affidavit with several important provisions relating to the age, mental capacity and understanding of its maker. Witnesses to the will must acknowledge the signing of the Will before a notary public or some other person authorized to take an acknowledgment.

If the self-proving Will is signed and notarized as described above, our office can initiate probate by presenting the original Will and a copy of the death certificate, with raised seal, to the Surrogate‘s Office in the county where the deceased resided at the time of death.  This begins the process of estate administration and probate.

Wills that are not self-proving can also be probated.  In such a situation, a copy of the death certificate with raised seal must be presented to the Surrogate’s Office.   The Executor must locate one of the witnesses who signed the Will and request that this person appear at the Surrogate’s Office to “prove” the Will.

If you cannot locate at least one(1) witness, then it will be necessary to commence the “diligent inquiry” process to locate the witness.  Should the witness reside out of the country or outside of the state, our office can coordinate probate with the Surrogate’s Office to make alternate arrangements to prove the Will.

Death and Inheritance Taxes

There are three (3) primary taxes which can potentially be levied upon an individual’s death: (1) the federal estate tax, (2) the New Jersey Inheritance Tax, and (3) federal and NJ income taxes. The executor needs to determine whether the first two taxes are due and must be paid. Income taxes must always be addressed by an executor on income received by the decedent before death or generated on estate assets between the decedent’s date of death and the date of distribution to beneficiaries.

In 2018, NJ abolished the estate death tax.  Will it last?  Who knows with this present Governor?  The NJ inheritance tax, however, still exists.  I discuss the inheritance tax extensively on a later subpage.  Please review the table of contents to find this subpage.

Understanding the Statute of Limitations for the
Underpayment or Failure to Pay NJ Death Taxes

Informal or Formal Accounting of the Estate

In order to properly conclude an estate, an accounting must be made by the executor to all eligible beneficiaries. Once the accounting is approved and a release and refunding bond signed by each beneficiary, estate property can be distributed. A release and refunding bond is always filed with the County Surrogate’s Office. This release and refunding bond requires that a named beneficiary acknowledges the receipt of their share of the estate. A fully executed release and refunding bond generally discharges the executor from further bond obligation(s) to the estate. Each beneficiary accepts pro rata responsibility for any debts filed against the estate subsequent to the beneficiary receiving his/her distribution.

When Can a Beneficiary Compel an Accounting From an Executor, Trustee or Administrator?

Addressing Trust Issues During Probate

In many cases, a testamentary trust is found within a decedents Last Will or it exists as an independent document that must be addressed as part of the probate process. Like the executor, the named trustee has a very serious responsibility to all beneficiaries of the trust. The trustee may have to comply with the Prudent Investor Act. This law requires that the trustee invest trust assets prudently. Prudently means that not only must the assets be preserved but they must be invested for the economic and financial benefit of the beneficiaries. Non-professional trustees are sometimes advised to delegate this function to professional investment trustees or trustee investment advisors. A family member can also continue to serve as trustee under this arrangement. In addition to this law, the trustee must file appropriate tax returns. These include federal and state 1041’s, which are income tax returns for the trust and K-1’s, which are given to beneficiaries to indicate income distributions made to them. A trustee must be careful not to undertake liability for acts that are not the responsibility of the executor. An executor, an administrator and a trustee each have personal liability at different levels to taxing authorities and to all the beneficiaries of an estate. A good faith effort by the fiduciary to be fair and reasonable will not necessarily protect the fiduciary from this liability. Serving as fiduciary is a complex undertaking, which should not be attempted without professional guidance.

Are you an executor, administrator or trustee of a New Jersey estate subject to probate? If so, speak with a knowledgeable New Jersey probate attorney who can work with you. Please call Fredrick P. Niemann, Esq. at toll-free (855) 376-5291 or e-mail him at fniemann@hnlawfirm.com and set up an office consultation at your convenience.

Probating the Will of a Foreign Resident Decedent in New Jersey

Yes, a foreign will can be probated in the U.S. and in NJ specifically. If I’m speaking to your situation, please contact me at Fredrick P. Niemann, Esq. toll-free at (855) 376-5291.  In the meantime, please view our video on the topic here.

What to Do When Estate Disputes and/or Litigation is Threatened

We Can Help You Navigate New Jersey Probate

LOOK WHERE FRED HAS BEEN

OFFICE OF CONTINUING EDUCATION WORKSHOPS

Rutgers State University is pleased to invite Mr. Fred Niemann of Hanlon Niemann & Wright to be the guest speaker at their workshops for the Office of Continuing Education.

Mr. Niemann will offer continuing Education courses on “Elder Abuse and Financial Exploitation”, “Hidden Secrets of Veterans Benefits”, “Veterans Aid and Attendance Benefits 2013”, “Medicaid Changes: The Approaching Storm”, and the “New NJ Comprehensive Waiver Demonstration”.

Fredrick P. Niemann, Esq. was recently asked to speak at the NJ State Bar Association Institute of Continuing Legal Education in New Brunswick, NJ on the essentials of estate planning.

Mr. Niemann addressed attorneys from throughout the state of NJ interested in learning key concepts and principals of NJ estate planning, including such topics as wills, trusts, estate taxations, asset protection, powers of attorney, health care directives, special needs and supplemental needs trusts for disabled and incapacitated individuals, avoiding probate through creative use of beneficiary planning, inheritance taxes, gifting and changes coming to federal estate taxation.

Fredrick P. Niemann, Esq. attended the 46th annual Heckerling Institute on Estate Planning Conference from January 9th to January 13th at the Orlando World Center sponsored by the Community of Miami School of Law. This week-long session assembled the nation’s leading authorities to lecture and discuss the latest in estate planning techniques and strategies. Topics analyzed and discussed included 1) elder law; 2) asset protection; 3) statutory case law developments; 4) planning with financial assets including annuities, Roth IRA’s, and life insurance policies; 5) litigation and tax controversies; 6) networking and practice development.

Mercer County Chapter of the New Jersey Society of CPAs

Fredrick P. Niemann spoke before the State Society of CPAs Mercer County Chapter about Estate Planning and Asset Protection Planning for individuals and families.  Topics addressed during the 4-hour seminar included hospice planning and asset protection, Veterans Aid & Attendance, planning using a Power of Attorney, Living Will and Healthcare Directive.  Attendees at the seminar were eligible to receive 4 hours of professional CEU credits from the State Society.

Probate does not have to be hard, long or expensive. You just need the guidance from a qualified New Jersey Probate Attorney about how to make the process work for you.  Contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Fred Niemann, NJ Estate Administration Attorney and Probate Lawyer

 

Estate Administration Lawyers serving these New Jersey Counties:

Monmouth County, Ocean County, Essex County, Cape May County, Mercer
County, Middlesex County, Bergen County, Morris County, Burlington County,
Union County, Somerset County, Hudson County, Passaic County