New Jersey Probate Attorneys
Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person’s property under the valid will. In New Jersey, a decedent’s last will and testament is filed (“probated”) in the Surrogate’s office of the county in which the decedent resided. In New Jersey, the County Surrogate has the authority to accept the Will for probate and to authorize the executor, as appointed under the Will, to serve in such capacity.
In the event that the Surrogate is unwilling to accept the Will for probate, or if the Surrogate determines that there is a problem with the manner in which the Will was executed or a problem with the interpretation of the Will, the Surrogate will not accept the Will for probate. In that event, it will be necessary for the individual offering the Will for probate (i.e. the proponent of the Will), to file a complaint in the New Jersey Superior Court, seeking an Order from the Court directing the Surrogate to accept the Will for probate.
If a decedent dies without a Will, he is said to have died intestate. The proceeding related to the administration of an intestate estate is referred to as an “intestate administration.” In New Jersey, this process is overseen by the County Surrogate. The process is very similar to a probate administration. The individual who is responsible for the administration of an intestate estate is referred to as the “administrator,” instead of the executor. Nonetheless, in New Jersey, the role of the executor and the administrator are very similar.
In the case of the probate of a will in New Jersey, it is possible that a beneficiary, an heir at law (next of kin) or an aggrieved party may challenge the probate of the Will. This type of contest is generally referred to as a “will contest.”
As with any legal proceeding, there are technical aspects associated with the probate and estate administration process. Among the responsibilities of the executor and administrator is the following:
The executor/administrator must notify heirs at law (next of kin) and/or beneficiaries named in the Will that the decedent has died and that the Surrogate has appointed the executor or administrator. In New Jersey, the notified parties will then have a limited time in which to challenge the probate of the Will, to offer another later executed Will, or to challenge the appointment of the administrator.
Marshaling the assets of the estate.
In New Jersey, this means that the executor/administrator must conduct a diligent search of the assets and claims of the decedent, and to establish an inventory of the assets. The executor/administrator must also take reasonable steps to safeguard the estate assets.
Satisfying the valid claims of the decedent and estate.
In New Jersey, the executor/administrator serves as a fiduciary. This means that he or she has a responsibility to the creditors of the decedent and the creditors of the estate, which is just as important as his or her responsibilities to the beneficiaries of the estate. Not complying with the fiduciary duties may allow interested persons to petition for the removal of the executor or administrator and hold him/her for any harm to the estate.
In New Jersey, another responsibility of the executor/administrator is to complete and file any and all income tax returns that remain unfiled (including the return for the year of death), and equally important, the preparation and filing of:
- a New Jersey Estate Tax Return (New Jersey Form IT-Estate) (if the estate exceeds $675,000),
- a New Jersey Inheritance Tax Return (New Jersey Form IT-R), and
- a Federal Estate Tax Return (IRS Form 706). The executor/administrator must also determine who is responsible for bearing the burden of any such tax (tax apportionment).
When a New Jersey executor/administrator is satisfied that he has satisfied all of the claims of the estate and that all of the assets of the decedent have been properly accounted for, then the estate can be distributed to the beneficiaries or the heirs at law. In connection with the distribution of such amounts, in New Jersey, the executor/administrator is expected to receive a fully executed refunding bond, release and waiver from the recipient. These documents are then filed with the County Surrogate, thus concluding the probate process. The executor/administrator is then relieved (discharged) from his responsibilities.
Sometimes, when a beneficiary or heir at law is not satisfied that he has received his fair share or that the estate has been properly administered in New Jersey, he may refuse to sign the refunding bond, waiver and release. The executor/administrator will then not be able to complete the administration of the estate unless he files a formal accounting with the County Surrogate. The County Surrogate will audit the accounting and then refer it to the Jude of the Superior Court in the county, for a hearing on the accuracy and propriety of the accounting. If the accounting is deemed by the Court to be accurate and proper, then the Judge of the Superior Court in the County will discharge the executor/administrator.
Below are links to various County Surrogate’s Offices we work with on a regular basis:
- Bergen County http://www.co.bergen.nj.us/Surrogate/Index.htm
- Essex County http://www.njsurrogates.com/county.asp?County=7
- Hudson County http://www.hudsonsurrogate.com/
- Hunterdon County http://www.co.hunterdon.nj.us/depts/surrog/message.htm
- Morris County http://www.morrissurrogate.com/
- Passaic County http://www.passaiccountynj.org/departments/surrogate/surrogatedepartment.htm
- Somerset County http://www.co.somerset.nj.us/surrogate.html
- Sussex County http://www.sussex.nj.us/cit-e-access/webpage.cfm?tid=7&tpid=920
- Union County http://ucnj.org/government/surrogate
- Warren County http://www.co.warren.nj.us/surrogate/
Einhorn Harris is prepared to assist executors, administrators and beneficiaries in connection with estate administrations and probate matters.
Given the complexities of Probate in New Jersey, we advise you to contact one of our experienced estate planning lawyers or probate attorneys at 973-627-7300 at Einhorn Harris today. We handle all probate issues throughout New Jersey.