You may have heard of probate, but it may be unfamiliar unless you have dealt with a will. Probate is a process used by courts to enforce the provisions of a will. Probate also manages any disputes that might arise about the decedent’s estate.
If there is a person named as the executor for the will, they will be very involved in the probate process. It can be a long process, depending on how complicated the will is, state laws, and other factors.
In most situations, the executor files the original will, a certified copy of the death certificate, and a list of the next of kin with a court or county surrogate. When no executor is named, the court appoints someone to serve in this capacity. An executor has to prove that will is valid and also gives the court an inventory of the decedent’s assets and debts, plus a list of people who are named as beneficiaries.
The initial process is basically a legal review of all these documents. If the legal requirements are all satisfied, the will is admitted to probate. Certificates are given to the executor, allowing that person to execute documents that the decedent would have done, like transferring investment accounts and automobile titles. The original will is recorded and becomes public record.
Factors that can make the probate process take longer include locating and securing assets and distributing them to named beneficiaries. Some people may be hard to locate, or they may have passed away. Any assets that are undistributed or unsold after debts are settled may then be sold or distributed in donations or cash bequests. Once everything is done, a final accounting must be prepared. This summarizes the estate and all the actions taken for the court and must be approved by the beneficiaries. When any disputes arise, beneficiaries can end up challenging executors in court.
Where Are Probate Cases Handled?
All probate cases are handled by the surrogate court of the county. They distribute the required legal documents, and the probate proceeding starts. If an executor or personal representative is not named in the will, the court appoints someone. The personal representative assembles the decedent’s assets and must then use them to pay any outstanding bills or debts. This might include funeral expenses, taxes, and creditors. Whatever is left can be distributed as the will directs. It is important to note that New Jersey does have an estate tax.
If there is no valid will and/or the value of all the assets are less than $10,000 and a surviving spouse is the only heir, it is considered to be a small estate. It can also be considered as such if there is only beneficiary and all other possible beneficiaries provide written consent. These can qualify for expedited probate processing, which takes less time.
Can I Avoid Probate?
Larger estates have to go through probate, but there are certain exceptions:
- Revocable trust: Upon death a revocable trust usually becomes irrevocable and cannot be modified. Ownership of the decedent’s assets are transferred to the trust, so they are owned by the trust when the decedent passes away.
- Owning real estate as a joint tenant: Another way to avoid probate is to own real estate as a joint tenant with a beneficiary.
- Designating beneficiary to retirement accounts: You can also designate a beneficiary for all of your retirement accounts, bank accounts, and life insurance policies, so the money will go directly where you want. Bank accounts that have payable upon death or transfer on death clauses are also not subject to probate.
Why Should I Try to Avoid Probate?
The New Jersey probate process is not known to be exceptionally long and expensive, but avoiding it can help ensure that your final wishes are carried out and that your loved ones will have closure sooner rather than later. They may need immediate access to the assets to pay for the funeral expenses.
Another reason to avoid probate is the fact that wills become public after probate. Anyone could look up the information, and this could be concerning to your loved ones.
How Do Trusts Work?
When you create a trust, your assets are placed in investment accounts during your lifetime so their values can increase. You will want to work with a qualified lawyer to set up a trust if you want to ensure that your wishes are carried out and that state laws are taken into account and followed.
Trustees are appointed and hold responsibility for managing the trust’s assets. This includes distributing assets after your passing and choosing successor trustees if they can no longer carry out their responsibilities. The beneficiaries have to follow your wishes, which cannot be changed upon your death. Trusts can be set up in many different ways and are important parts of estate planning.
Warren Wills, Trusts, and Estates Lawyers at Herold Law Will Offer You Guidance When You Are Creating an Estate Plan
Many people do not realize how the probate process works when creating an estate plan. Our Warren wills, trusts, and estates lawyers at Herold Law, P.A. can answer your questions, explain your options, and help you make the right decisions. Call us at 908-647-1022 or complete our online form to schedule an initial consultation. Located in Warren, New Jersey, we serve clients throughout the surrounding areas, including Plainfield.