Probate: Frequently Asked Questions
Probate: Frequently Asked Questions
What is Probate? Probate is the process which validates the Last Will & Testament and permits an executor to transfer assets as directed by a decedent in their Last Will & Testament (the decedent who made the Last Will & Testament is called a “testator”) to the beneficiaries (recipients).
Probate is NOT complicated in New Jersey.
* you do not need to bring an attorney with you.
* you need not make an appointment
* the court is open between 8:30 a.m. and 4:30 p.m.
Where do I go to Probate? To probate a Last Will & Testament, you should contact the Surrogate’s Court for the County in which the testator resided. A Last Will & Testament can be probated by the Bergen County Surrogate under these circumstances: 1. The testator resided in Bergen County 2. An out of state resident owned property exclusively in Bergen County at the time of his or her death.
What do I need to bring with me to Probate? 1. Certified Copy (raised seal) of the Death Certificate 2. Names & Addresses of closest surviving next-of-kin (regardless if they’re named in the Will or not) 3. Original Last Will & Testament of the decedent
IMPORTANT NOTE #1: ONLY an original Last Will & Testament can be probated in the Surrogate’s Court; you cannot probate a copy of a person’s Last Will & Testament.
IMPORTANT NOTE #2: We do not accept out of state checks unless they are ceertified checks. Personal checks will only be accepted if they are drawn upon a New Jersey bank bearing a New jersey address.
IMPORTANT NOTE #3: Neither the Last Will & Testament nor the Certified Copy of the Death Certificate that you bring to probate will be returned to you; they will remain on record with the Surrogate’s Court in Hackensack.
May I write or make notations on a Last Will & Testament?
NO! DO NOT make handwritten changes to your Last Will & Testament after it has been signed by you and your witnesses. Once you write on a will, you invalidate it.
Do I have to Probate? - OR - When is Probate necessary?
Whether a particular asset to be transferred must go through probate or not depends on how ownership (title) to the asset is held. For example, if a title to an automobile or a piece of real estate is held in the decedent’s name alone, the next of kin would have to visit the Surrogate’s Court in order to be appointed as executor (or administrator in the absence of a Last Will & Testament) in order to change the title of the vehicle or the piece of property. However, if ALL ASSETS (bank accounts, securities, cars, real estate, etc.) are held by the testator AND another person as “Joint Tenants with Right of Survivorship,” or in the event of a married couple as “Joint Tenant By the Entirety” you do not have to probate.
What about 401(k)s, IRAs, insurance proceeds & other assets outside of the Last Will & Testament?
“Beneficiary designation property” is generally non-probate property which passes in accordance with beneficiary designations assigned by the testator. Life insurance proceeds, 401(k) plans, IRA’s, employee death benefits (e.g., pension, profit-sharing, etc.) and accounts titled “Payable on Death” (POD) and/or “In Trust For” (ITF) are typical beneficiary designation property.)
The basics of wrapping up an estate in New Jersey
Probate is a court-supervised legal process that may be required after someone dies. Probate gives someone, usually the surviving spouse or other close family member, authority to gather the deceased person’s assets, pay debts and taxes, and eventually transfer assets to the people who inherit them.
Probate and Nonprobate Assets
Probate court proceedings aren’t always necessary. Usually, they are required only if the deceased person owned assets in his or her name alone. Other assets, called “nonprobate” property, can probably be transferred to their new owners without probate.
Common nonprobate assets include:
- assets the deceased person owned with someone else in joint tenancy or tenancy by the entirety, which pass automatically to the surviving owner assets for which the deceased person designated a beneficiary outside of the will—for example,
- IRAs or 401(k) plans for which the deceased person named a beneficiary, or payable-on-death bank accounts life insurance proceeds or pension benefits that are payable to a named beneficiary assets held in a revocable living trust
Simplified Probate When There’s No Will
If the deceased person didn’t leave a will or a lot of valuable property, surviving family members can take advantage of New Jersey’s simplified probate procedures. The streamlined probate, which is quicker and less expensive than regular probate, is available if:
- the value of all of the assets left by the deceased person doesn't exceed $20,000, and the surviving spouse or domestic partner is entitled to all of it without probate, or there is no surviving spouse or domestic partner and the value of all of the assets doesn't exceed $10,000. One heir, with the written consent of the others, can file an affidavit (sworn statement) with the court and receive all the assets.
Probate in New Jersey is handled by the surrogate’s court in the county in which the deceased person lived. If all goes smoothly, the process should take less than a year.
Appointment of an Executor or Administrator
If the deceased person named you to serve as executor in his or her will, and probate is necessary, you will go to the surrogate’s court and request to be formally appointed as executor of the estate. This can happen as soon as 10 days after the death. You’ll need to supply the will and a certified copy of the death certificate. If the will isn’t “self-proving,” one of the two witnesses who watched the deceased person sign it and signed the will themselves must appear I court (or submit a sworn statement) as well.
If there is no will, or the person named in the will isn’t available or willing to serve, the probate court will appoint an “administrator.” This person does the same job as an executor. New Jersey law gives the surviving spouse or domestic partner, if any, first priority to be appointed as administrator.
An executor or administrator who is not a resident of New Jersey must post a bond, unless the will states that it’s not necessary. A bond is a kind of insurance policy that protects the estate if the executor or administrator mismanages or steals estate funds.
Unless there is reason to think the will is not valid, or someone is contesting the will in court (this is called a “will caveat”), the surrogate’s court will issue a document called “Letters Testamentary” (if the executor was named in the will) or “Letters of Administration” (if the court appoints an administrator).