ProbateGeneral Information & Questions Most Frequently Asked - Probate
Probate is the process by which a purported will is adjudicated to be valid. Unless there is a contest, that adjudication takes place in the Surrogate's Office.
The following is a list of commonly asked questions regarding probate and the answers:
When to probate?
Although a will may be brought to the Surrogate's Office anytime after death, probate and the issuance of letters occur only after the 11th day after death.
Who is the personal representative?
The executor or administrator, depending upon whether the decedent had a will.
Who is the executor/executrix?
This is the person named in the will to carry out the provisions of the will.
Who is the administrator?
This is the person appointed by the Surrogate's Court to manage and distribute the estate of a person who dies without a will.
How do I begin the probate process?
The probate process is commenced by filing an application at the Surrogate's office. The applicant must have an original will and a death certificate.
What are the basic obligations of the executor/administrator?
The executor or administrator is required to collect and safeguard the assets of the estate, to pay the debts of the decedent and any taxes due, to make distribution to the devisees under the will or heirs if the decedent had no will and, if required, to provide an accounting of the administration of the estate.
Is it necessary to send copies of the will to devisees?
Yes. From the time the will is probated, the executor has 60 days to mail a copy of the will along with notice of the specific date and place the will was entered into probate to the devisees, spouse, heirs, next of kin and persons, if any, entitled to letters.
How does the surviving spouse handle joint bank accounts or certificates of deposit?
Certain bank accounts and certificates may be owned with rights of survivorship, which means that upon the death of one party to the account, the surviving spouse becomes the sole owner. The account does not pass through the decedent's estate. The survivor, by completing an "Affidavit of Waiver" (form L-7), is permitted to transfer the assets to his or her own name. The Affidavit of Waiver is available from the bank.
Am I entitled to compensation as executor or administrator?
Generally an executor or administrator is entitled to a commission of 5% on the estate corpus and 6% on the income generated during the period of administration.
How do I get the will out of the safe deposit box?
The executor is permitted to remove the original will as well as the deed to a cemetery plot and certain life insurance policies from the decedent's safe deposit box before probate, in the presence of a bank officer and without the presence of a representative of the Inheritance Tax Bureau.
How is an administrator appointed when there is no will?
The Surrogate may grant letters of administration according to the order of priorities established by New Jersey Statutes. The law provides the first right to act to the surviving spouse. If there is no surviving spouse or if he/she does not want to be the administrator, the Surrogate may issue letters of administration to one or more of the remaining heirs. If the spouse and heirs do not claim the administration within 40 days after the death of an intestate decedent, the Surrogate may grant letters of administration to any fit person applying for letters. In cases where the individual applying for letters is not the person with the first priority, that person must file a renunciation from, or proof of notice to, any individual with a prior or equal right to letters.
How is distribution made if there is no will?
If the decedent dies without a will (intestate), there is a statute which determines to whom the decedent's property is to be distributed according to the degree of the family relationship. NJSA 3B:5-3 and NJSA 3B:5-4.