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What is Probate?

When a person dies owning assets, probate is often required to transfer the title. Some assets are “probate assets.” These assets can only be transferred after an executor or administrator has been appointed by one of the New Jersey Surrogates. Each county in New Jersey has its own Surrogate. The county where probate is initiated is determined by the decedent’s residence. If that person died with a will, the executor named in the will will be appointed by the Surrogate, then the assets will be transferred to the beneficiaries named in the will by that executor. If the person died without a will, the surrogate will appoint an administrator, then the assets will be transferred according the New Jersey Intestacy Statutes by the administrator.

There are, however, assets which can be transferred without probate. These assets are transferred to a designated beneficiary under contract law. Examples include: the joint tenant of real estate automatically becomes the sole owner of that real property; the “payable on death” beneficiary on a bank account takes ownership of the entire account; the named beneficiary on a contract for life insurance will be paid the proceeds of the policy without the need for the executor or administrator to take any action. Other assets which typically pass without the need for probate include IRAs, 401(k)s, and employee death benefits. Determining if an asset must go through probate to effectuate transfer is dependent upon how the title to the asset was held at the time of the person’s death.

Personal property, including stocks, bonds and bank accounts, vehicles and real property which are held solely in the decedent’s name require probate for transfer to the beneficiary. These assets are referred to as “probate property” and are transferred to the people designated in the will, or if there is no will, to the people designated by New Jersey’s laws of intestacy.

If probate is required, this is done at the New Jersey Surrogate’s Court in the county where the decedent resided. A will cannot be probated until ten days following the death of the testator (the person who executed the will). The person who is named executor in the will must appear at the Surrogate’s County with the original will, an original certified death certificate, the names and addresses of the next of kin (the surviving family members), a check to pay the Surrogate’s fees for probating the will, and valid identification.

Most wills are “self-proving,” with a page at the end called a “self-proving affidavit,” which the people who witnessed the will signed before a notary public. If there is no self-proving affidavit annexed to the will, then the Surrogate’s Court will require someone who signed the will as a witness to accompany the executor to the Surrogate’s Court. If the will is self-proving, the executor does not need to bring a witness.

At the Surrogate’s Court, the executor will meet with a probate clerk. If the clerk approves the documentation, he will sign paperwork and be sworn in as the executor. A judgment of probate will be entered and the clerk will issue letters testamentary (also referred to as executor’s certificates). The letters testamentary is the document which gives the executor the authority to act on behalf of the estate. Typically, the executor will be required to provide an original letters testamentary with a raised seal to each institution where the decedent held assets in order to transfer each asset to the appropriate beneficiary. Letters testamentary are also required to transfer title to vehicles and real estate. The fee for each original raised seal Letter is $5.00. New Jersey law requires the executor to send, within sixty days of probating the will, a notice of probate to the beneficiaries and next of kin. The notice of probate must state that the will was probated. After providing the notice as required by New Jersey law, the executor must file the notice of probate along with a proof of mailing with the Surrogate’s Court
Our New Jersey estate attorneys are experienced in estate administration and understood the difficulties involved in both losing a loved one and dealing with the complexities of dealing with the administration of complex estate issues. We are here to help. If you need assistance with probate and estate administration, please e-mail us, visit our website, or contact one of our New Jersey estate attorneys at (973)890-0004.