Articles Tagged with “New Jersey estate administration”

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estate sale.jpgIn addition to the usual issues which come up when you are purchasing real estate, such as the contract review, home inspections, negotiations, and applying for a mortgage if necessary, when you purchase real estate from an estate there are some additional concerns.

When the owner of the property has died prior to entering into a contract of sale, and the property is being sold by an estate, the first question is: Who has the power to sell the property?

The person who has the power to enter into a contract for sale is usually the executor. If the deceased owner had a will and the property is passing with the residuary estate, (the residuary estate is what is left after specific bequests), the executor can do everything needed to effectuate the sale. It will be necessary during the contract period to obtain the death certificate, a copy of the will and the letters testamentary (the document from the surrogate’s court appointing the executor). The buyer’s attorney should insist that these documents are provided within a short time period after the contract is finalized.

However, if you obtain a copy of the will and see that the property passes by specific bequest to specific named beneficiaries, then not only does the executor need to be involved in the sale, but also under the New Jersey Real Estate law the beneficiaries must join in the sale. This can only be determined by seeing a copy of the probated will. When real estate is devised by specific bequest, it can create significant delays as the beneficiaries may be scattered throughout country, or even out of the country. In this case, the beneficiaries must all agree to sell real property on the terms and conditions in the contract, they must all agree to the resolution of any issues throughout the contract period, including home inspection negotiations. The seller’s attorney will need to seek the consent of each beneficiary for attorney review changes, home inspection repairs requests, etc. Each of the specific bequest beneficiaries must also execute the closing documents. Clearly, a purchase is more difficult if there is a specific bequest of real estate. However, if the buyer is represented by an attorney who understands the issues involved, these issues can be effectively managed.
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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.
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