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The Fiduciary Obligations of an Executor in New Jersey

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Will.jpgWhen you discover that you are named as the executor of an estate, it can be overwhelming. The executor of an estate has a fiduciary obligation under New Jersey estate law to administer the estate and collect and distribute the assets in accordance with the last person’s will.

The first step is to probate the will. The executor must appear before the surrogate in the county where the person resided at the time of their death and provide the surrogate with the original will and a certified death certificate. In New Jersey you must wait ten days after the date of death to probate the will. If the will was properly executed and no caveats were filed objecting to the will, then the surrogate will admit the will and issue letters testamentary appointing the executor. The executor will then have the power to act. New Jersey probate law requires that the executor must act in the best interests of the estate and the beneficiaries. After the will is probated, the executor must provide formal notice of the probate to the beneficiaries named in the will and the deceased person’s next of kin.

Then the executor must gather the deceased person’s assets. This can be difficult as you must conduct a search to find all accounts, businesses, physical property and real estate. Appraisals of certain property must be obtained by the executor. The executor must apply to the Internal Revenue Service to obtain a federal tax identification number. Additionally, the executor must pay all of the decedents legitimate debts. One of the executor’s responsibilities is to confirm that the debts are actually owed by the estate. All uncontested bills must be paid, and the questionable bills, debts and obligations must be researched and resolved. Also, there may be statutory liens and liabilities which should be researched and paid. If legitimate debts of the estate are not paid the executor may become personally responsible for them.

The executor is responsible for preparing, filing and paying any applicable federal New Jersey estate and inheritance tax return and filing the estate tax return and the final income tax returns for the decedent. Each of these tax returns has filing and payment deadlines which must be met or the estate will be subject to interest and penalties for the late filings and/or payments. An executor may be personal liable for interest and penalties which are the result of the executor’s unexcused failure to act in a timely manner. After payment in full of any New Jersey estate or inheritance taxes, the state of New Jersey will issue inheritance tax waivers which are required to transfer assets to the estate and/or the beneficiaries. Tax waivers for real property must be recorded.

The executor must also, after the receipt of the New Jersey inheritance tax waivers, complete all required paperwork to transfer the assets from the decedent to the beneficiaries. This can include preparation of deeds, affidavits of title, 1099 forms, seller’s residency certifications, affidavits of domicile, W-9 forms, and stock transfer forms, just to name a few. If the property is located outside of the state of New Jersey, the executor may be required to file for ancillary probate in the jurisdiction where the property is located.

However, before assets can be transferred from the estate to the beneficiaries, the executor must prepare refunding bonds and releases documents for each beneficiary, and each beneficiary must properly execute the refunding bonds and releases. Upon receipt, the executor must cause the refunding bonds and releases to be filed with the county surrogate. After properly executed documents from each beneficiary have been filed, then the executor can release the assets and transfer them according to the provisions of the decedent’s will.

Executors are permitted to hire an attorney to assist in the administration of the estate and to ensure that they are meeting their fiduciary obligations. The attorneys at McLaughlin & Nardi are experienced in estate administration. If you require assistance, please call or e-mail us.

To learn more about how we can help, please visit our website.