When someone dies, ownership of their property must pass to others. Probate law deals with the orderly transfer of property from a decedent’s estate to others as well as legal issues related to that process. The death of a loved one is a sad, emotional time. It is tough to cope with the emotions brought on by the loss and at the same time deal with critical details related to winding up the decedent’s estate. However, in New Jersey there are legal requirements that must be addressed in a timely matter to ensure that the estate assets are transferred the way the decedent wanted or in the manner required by New Jersey Administration of Estates Decedents and Others Law. If you are involved in the administration of the estate of a loved one as a personal representative or in any other capacity, contact an experienced New Jersey probate lawyer.
In New Jersey probate matters are handled by two courts: the Surrogate’s Court and the Superior Court, Chancery Division, Probate Part. Together, they serve as the probate court N.J.S.3B:2-2. Each of the 21 counties in New Jersey has an elected surrogate. The administration process is managed by an administrator appointed by the court. The administrator is sometimes referred to as the personal administrator or executor.
Once the will has been admitted to probate and the administrator appointed, there are 3 basic steps that the administrator must perform to settle the decedent’s estate: identify and inventory the assets, pay estate bills, and distribute assets. These duties and responsibilities may seem straightforward, but they rarely are. Identifying, collecting, and inventorying the estate can be a daunting task, particularly if the decedent owns significant assets of varying types. Paying estate bills may also involve responding to claims against the estate. Distributing estate assets may be complicated by problems locating beneficiaries, complicated details related to transferring titles, and beneficiary arguments over entitlement to personal property.
These are the major steps. However, the process of settling an estate can involve many other tasks. To learn more about the details of what is involved in the administration of an estate, contact an experienced New Jersey probate lawyer. Furthermore, at any time during the estate administration process, arguments might erupt into costly, time-consuming probate litigation.
With all the emotions that accompany the loss of a love one, complicated family dynamics, and complex legal requirements, it is not surprising that probate disputes develop resulting in litigation. Probate litigation occurs when a dispute develops during the probate process that cannot be resolved by the parties without the issues being litigated before a Surrogate’s Court judge. While probate litigation may be necessary to resolve disputes, it can also be costly and prolonged.
A common type of probate litigation is a will contest. A will contest occurs because a beneficiary or heir believes that the will is not valid. Typically the objector would have received a larger share of the estate under a prior will or in the absence of a will. Disputes related to the will may also be based on conflicting interpretation of the terms of the will. The executor or administrator is often the center of conflict. Beneficiaries may challenge the way the administrator is managing the estate and accuse the administrator of malfeasance. The petition may even charge that the administrator did not meet the legal requirements to be appointed to the role. If you are concerned about the validity of a will, contact an experienced probate attorney in New Jersey.
Not every decedent leaves a will. In New Jersey even intestate estates must go through probate. In the absence of a will, the Surrogate’s Court will deem the decedent intestate and proceeds with settling the estate based on New Jersey’s intestate succession laws. N.J.S.3B:5-1 et seq. The practical impact of intestacy is that the decedent would not have nominated an executor and there is no legally enforceable evidence of how the decedent wanted his estate distributed. Both these issues can lead to complications and, in some instances probate litigation.
In the absence of will nominating the executor, the court will entertain petitions to be appointed administrator. Under New Jersey law, only specific people have the right to serve as administrator and there is an order of priority as to who the court will consider. Further, there are rules related to who is qualified to serve. Disputes may develop when multiple people petition the court to be appointed administrator, or where one person files an option to another person’s petition.
Dying intestate can lead to disputes related to who inherits. Under New Jersey’s intestacy rules, the decedent’s children and surviving spouse would be the legal heirs. Problems develop when there is no known surviving spouse or children and claimants come forward demanding a share of the estate. To resolve the issue a kinship hearing may be required. During a kinship hearing, claimants must present evidence of relatedness to the decedent. In intestacy cases when can help locate missing heirs and assemble evidence to show consanguinity.
Distribution of Assets Without Administration
While probate is a necessary process, it is typically a long process and is often complicated. In some instances estates that are small can avoid the formal probate process and take advantage of a simplified process. To initiate the process, the executor or a beneficiary must file an affidavit with the court.
As an experienced probate attorney serving New Jersey will explain, an estate will qualify for the small estate process if either A or B exists:
- The estate is intestate, the value of all property does not exceed $20,000, and the surviving spouse or domestic partner is entitled to the entire estate. However, the surviving spouse or domestic partner must agree to use all the estate assets except $5000 to pay any valid creditor claims. N.J. Stat. Ann. § 3B:10-3.
- The estate is intestate, the value of all property does not exceed $10,000, and there is no surviving spouse or domestic partner. Only one heir can file the affidavit and receive all of the assets. N.J. Stat. Ann. § 3B:10-4.