The Inclusive Probate Primer in New Jersey

Sep 4

Testate Probate - Estates With Wills

Considerations Before Applying to Probate

The first step is for the executor of the Will to confirm the following information to properly probate a Will.

Determine the county the decedent resided in at the time of their death (can be found on the death certificate, unless the death certificate needs to be amended/corrected) to determine which County Surrogate’s Court probate is appropriate. Executors must probate Wills in the county the decedent resided at the time of death.
Only an original Will may be entered into probate by the Surrogate’s Court. Executors should double-check the copy they have to ensure it is an original, signed Will and not a photocopy, conformed, nor plain copy of the Will. If the original cannot be located, photocopies, conformed, holographic, and plain copies of Wills may be recognized as “writings intended as wills” pursuant to N.J.S.A. 3B:3-2 and 3-3 by way of a Verified Complaint and Order to Show Cause.
Confirm the named executor and alternate executor. Ask or confirm whether the primary executor is alive and will qualify and probate the will with the Surrogate. If they must be bonded, determine whether the named executor will qualify for a bond.
Determine whether the Will is “self-proved” (N.J.S.A. 3B:3-4). If not, a witness will need to execute and submit a Proof of Witness form along with the probate application.
List all assets solely in the decedent’s name in order to determine the number of short certificates that will be requested. If there are assets held jointly, determine whether those assets will pass to beneficiaries and, if so, what fractional interest exists.
List all next of kin with their full names and addresses, regardless if they are beneficiaries or not. If any next-of-kin are minors, list their ages. If there are any deceased next-of-kin, their children must be named.

Once all of the above information is confirmed (which can take months, in some cases), the executor can probate the Will in the appropriate County Surrogate. However, this cannot be earlier than the 10th day after the decedent passes. Probate may begin in the Surrogate’s Court earlier than the 10 day restriction, but the issuance of Surrogate’s Letters will not occur until the 11th day. This 10-day period allows for the filing of a caveat by an heir at law or beneficiary in a prior last Will and is protect by New Jersey Statute.

Initiating the Probate Process and Probating the Will

The Need to Probate Wills

Most wills in New Jersey must be submitted to the Surrogate in the county where the decedent passed(probated). However, it is important to note that before probate is initiated certain Wills do not need to be entered into probate if the decedent holds no assets in their name solely at the time of their death. Sometimes, when a decedent holds no assets solely in their own name, a family may nonetheless file the Will with the Surrogate’s Court as a matter of course. The cost to probate a Will is $100 for the first two pages, $5 for each additional page, and $5 for each short form certificate. The Will is assigned a docket number and is public record.

However, if the decedent does have assets solely in their name at the time of their death, then the Will must be probated regardless of the value of the estate. Probate is necessary as the named executor in the Will does not have the authority to transfer the assets both real and personal to the estate without the Surrogate’s Letter. Any assets that are owned jointly between the decedent and another person must be determined to be held as joint tenants or tenants in common. For instance, two parties may own property with each having a 50% interest as a tenant in common. This means either party can divvy their interest to others as they like, without the need for signatures or authorization from their co-tenant. However, joint tenancies requires all owners to authorize transfers and releases. Indeed, if a joint tenancy owns a house, the last surviving tenant will have full ownership, and thereby full authority to transfer or sell their interest as they see fit without interference or restriction.

By properly probating an estate, the beneficiaries avoid issues in the future with cloudy titles to real estate and obtaining money held in banks or insurance policies that otherwise cannot be paid unless the estate is properly probated.

Starting the Probate Application Process

Probate begins with the executor presenting the original Will together with a certified copy of the death certificate and list of heirs at law or next-of-kin to the Surrogate in the county where the deedent resided. If the purported Will is adjudicated valid, then the Application for Probate, an Authorization to Accept Service of Process, Executor Qualification and Child Support Verification are prepared by the Surrogate for signature by the Executor.

The executor will sign the Application for Probate requesting the Surrogate to file the aforementioned forms with the Superior Court. This application contains information on the executor and the heirs at law because it notifies all persons who are named in the Will as beneficiaries and those who would have inherited if the decedent died intestate (with no Will). This allows any of the listed heirs at law to contest or challenge probate even if they are not a named beneficiary in the Will. Reasons for challenging a Will include: (1) challenging the executor for good cause (untrustworthy, out of state, and others), (2) challenging the validity of the Will or the circumstances of its creation (i.e. undue influence, fraud, self-dealing, and so on).

Part of the application may also include the requirement for the executor to be bonded, however, there are exemptions: (1) If there is a court appointed guardian of the person and/or property of the developmentally disabled person no bond is required, (2) If the person seeking the appointment is a family member within the third degree of consanguinity to the developmentally disabled person no bond is required, and (3) if the total value of the estate does not exceed $25,000.00 no bond is required.

Before an executor can perform their duties, an Authorization To Accept Service of Process (Power of Attorney) must be executed in favor of the Surrogate empowering the Surrogate to accept service of process in any case in which the administrator, in their capacity, is a party. If someone sues the estate and personal service cannot be effected, service of process may be made upon the Surrogate, which will mail a copy of the process directly to the executor.

The executor must sign the Executor Qualification certifying to administer the estate according to law. This form states that the executor acknowledges their fiduciary duties in accepting the position of executor: (1) bringing all assets into the estate, (2) maximizing the value of those assets, (3) paying out all liabilities from the assets, (4) follow the directions of the Will, (5) present an accounting and inventory of the estate when required by law, and (6) filing the child support judgment searches if necessary. These fiduciary duties are duties of loyalty and care to the estate - that means beneficiaries and creditors. It is imperative that the estate pay off creditors, pay all applicable taxes, and then distribute the remainder to the beneficiaries. If the estate has more to pay out than to pass on to beneficiaries, it is called insolvent,” and the executor must file with the Superior Court to resolve all issues. The executor may still earn their commission (5% of the first $200,000, 3.5% of the amount between $200,000 and $1,000,000, and 2% of the excess over $1,000,000). The commission is considered income - even if the executor is a beneficiary of the estate - and must be reported on the executor’s personal tax returns.

Wills and Probate Application Pitfalls

Most Wills prepared by attorneys are called “self-proved.” This means the Will contains certain language at the end of the Will in which the testator and two witnesses attest: (1) that the document they are signing is a Last Will and Testament; (2) that the testator is over 18 years of age, of sound mind, and under no undue constraint in signing the instrument. A Will properly self-proved may be admitted to probate without further proof of proper execution. The attorney or notary public notarizing the Will must subscribe to the self-proved affidavit and the signature of the testator and both witnesses.

Alternatively, when the Will is not “self-proved”, one of the witnesses must appear before the Surrogate to execute a Proof of Witness. If the Will witness is outside the county or the state at the time the executor applied to probate the will, the witness must submit to deposition to prove the validity of the Will. This deposition occurs after the executor applies for probate: the Surrogate’s Court will order a commission to another Surrogate (in state) or notary public (out of state) to take the oath of the witness to the Will in the jurisdiction where the witness is located. A copy of the Will with an Order signed by the Surrogate requesting the deposition of the witness and the Proof of Witness form are sent to the person commissioned. The deposition of the witness is then taken under oath and certified by the person commissioned. The Proof of Witness is returned to the Surrogate.

If both witnesses are deceased and the Will is not “self-proved”, the signatures of both witnesses and the Testator must be proved by the affidavit of persons who can identify the signature. One person may prove the signature of both witnesses. When the Will is properly proved, the Surrogate will enter a Judgment Admitting Will To Probate and issue Letters Testamentary which certifies the Will is valid and authorizes the executor to act on behalf of the probate estate. Without the Letters Testamentary, the executor of the probate estate will find it difficult to impossible to obtain bank information and funds held in financial institutions, as well as releasing funds related to pensions, life insurance policies, and the like.

Lastly, once the probate application is finalized and the paperwork is accepted, the Surrogate will issue an Executor Short Form Certificate (this is a short-form version of the Letters Testamentary). The executor uses this certificate as proof of their authority to transfer, encumber, lease, marshall, or sell assets of the deceased. The assets are those that are solely in the decedent’s name or assets held as a tenant in common; assets that are held jointly, or as joint tenants with another party are not distributed by the decedent’s Will. It is common to request multiple short form certificates in the event financial institutions hold originals, certificates are lost, or the executor needs to mail a certificate and death certificate.

Probating Estates Without Wills - Intestate Estates and Administration

General Intestate Application Considerations for Proposed Administrators

If the decedent dies without leaving a Will and is a resident of New Jersey, state intestacy law determines who has the right to administer the estate and provides the manner for distribution of the assets. An intestate estate application is necessary when a deceased person has not left a valid Will. Intestate estates are simply those in which there is no Will. In this situation, the distribution of the decedent's assets is governed by state intestacy laws. The process typically involves an interested party (typically a next of kin, heir at law, or creditor) to determine the following before applying for administration of the estate:

Determine the county the decedent resided in at the time of their death (can be found on the death certificate, unless the death certificate needs to be amended/corrected) to determine which County Surrogate’s Court probate is appropriate. Executors must probate Wills in the county the decedent resided at the time of death.
Determine who has the first right to be granted Letters of Administration. The heirarchy pursuant to N.J.S.A. 3B:10-2 is as follows:
- Surviving spouse or domestic partner of the intestate;
- The remaining heirs of the intestate, or some of them, if they or any of them will accept the administration; and,
- Any other person as will accept the administration.
List all assets solely in the decedent’s name in order to determine the number of short certificates that will be requested. If there are assets held jointly, determine whether those assets will pass to beneficiaries and, if so, what fractional interest exists.
List all next of kin with their full names and addresses, regardless if they are beneficiaries or not. If any next-of-kin are minors, list their ages. If there are any deceased next-of-kin, their children must be named.
Determine the value of the assets in the decedent’s name alone for the purpose of securing a surety bond if one is required.

Intestate Distribution Generally

Under the intestate laws of New Jersey, if the property owned by the decedent alone exceeds $20,000, administration must be performed. Intestate distribution, according to N.J.S.A. 3B:3-4, is roughly as follows:

If the decedent has a surviving spouse, domestic partner, or civil union partner but no children of the decedent and no parents, the surviving spouse or domestic partner or civil union partner receives 100% of the estate and no bond is required.
If the decedent has a surviving spouse, domestic partner or civil union partner and children of the decedent’s all of whom are also children of the spouse and no other descendants the spouse or domestic partner or civil union partner will receive 100% of the estate and no bond will be required. The children receive nothing.
If the decedent has a surviving spouse, domestic partner or civil union partner and no children of the decedent but surviving parents the spouse or domestic partner or civil union partner will receive the first 25% of the estate but not less than $ 50,000 nor more than $ 200,000 plus three-fourth of the balance of the estate; parents receive all other assets. A bond will be required for an estate over $ 50,000.
If the decedent has a surviving spouse, domestic partner or civil union partner and children of the decedent whom are not children of the surviving spouse, the spouse or domestic partner or civil union partner will receive the first 25% of the estate but not less than $50,000 nor more than $200,000 plus one-half the balance; children will receive all other assets. A bond will be required for an estate over $50,000.
If the decedent has a surviving spouse, domestic partner or civil union partner and children of the decedent and children who are not children of the decedent the spouse or domestic partner or civil union partner will receive the first 25% of the estate but not less than $50,000 nor more than $200,000 plus one-half the balance; children receive all other assets. A bond will be required for an estate over $50,000.
If the decedent has no spouse, no domestic partner, no civil union partner, no children of decedent, no parents, no descendants of parents, no grandparents or descendants of grandchildren but children of the spouse (stepchildren) the stepchildren will receive 100% of the estate and a bond will be required.
If you die leaving no spouse, no domestic partner, no civil union partner, no children of the decedent, no parents, no descendants of parents, no grandparents or descendants of grandparents and no children of a spouse the estate passes to the State of New Jersey Unclaimed Property Administrator.
If the surviving spouse or domestic partner or civil union partner renounces, then he/she has the right to ask for the appointment of someone else and that person will be required to post bond regardless of the value of the estate.

Administrator Tasks When Applying for Estate Administration

The proposed administrator must file renunciations with the Surrogate from all competent adults whose right to letters is higher or equal to the administrator’s or, in lieu thereof, must produce sufficient notice such application has been given to all such persons. The administrator’s notice to others who may be granted letters may not be less than 10 days for residents of New Jersey, and 60 days for persons resident outside of New Jersey. The renunciations must be signed and notarized by those other competent adults with the same or greater right to Letters as the affiant, and the affiant must file with the Surrogate. Renounciations still entitle heirs the right to take their inheritance. However, the executor or administrator is the only person authorize to administer the estate prior to distributing to the probate beneficiaries.

The administrator must execute the Application for Administration which contains information on the administrator and the heirs at law. This application is the start of the estate procedure in the Surrogate’s Court. The administrator must also execute an Authorization to Accept Service of Process (Power of Attorney) in favor of the Surrogate empowering the Surrogate. If someone sues the estate and personal service cannot be affected, service of process may be made upon the Surrogate and the Surrogate will forward process to the administrator of the estate via mail a at the address on the Authorization.

The administrator must sign the Administrator Qualification certifying to administer the estate according to law. This form states that the administrator acknowledges their fiduciary duties in accepting the position of administrator: (1) bringing all assets into the estate, (2) maximizing the value of those assets, (3) paying out all liabilities from the assets, (4) present an accounting and inventory of the estate when required by law, and (5) filing the child support judgment searches if necessary. These fiduciary duties are duties of loyalty and care to the estate - that means beneficiaries and creditors. It is imperative that the estate pay off creditors, pay all applicable taxes, and then distribute the remainder to the beneficiaries. If the estate has more to pay out than to pass on to beneficiaries, it is called insolvent,” and the executor must file with the Superior Court to resolve all issues. The administrator may still earn their commission (5% of the first $200,000, 3.5% of the amount between $200,000 and $1,000,000, and 2% of the excess over $1,000,000). The commission is considered income - even if the administrator is a beneficiary of the estate - and must be reported on the administrator’s personal tax returns.

Pursuant to N.J.S.A. 2A:17-56.23b, before distributing any net proceeds of a settlement, judgment, inheritance or award to the prevailing party or beneficiary in excess of $2,000, the administrator is required to confirm that there are no child support judgments against any beneficiary standing to inherit $2,000 or more from the probate estate. This conforms with the administrator’s general obligations to pay the decedent’s debts and taxes, to make distribution to the beneficiaries, and if required, to provide an accounting of their administration of the estate. If the search does return a child support judgment that is unpaid or in arrears, the administrator must verify that the judgment is satisfied, or up to date, prior to distributing to that beneficiary.

The Administrator may have to post a surety bond. The posting of a surety bond is security for the faithful performance of the administrator’s duties. The surety bond must be signed by the administrator as principal and their signature must be witnessed. An approved bonding company may act as surety to the plaintiff’s bond. The Refunding Bond and Release ensures that if a creditor files a claim against an estate or estate administrator, all heirs have agreed to return funds back into the estate to satisfy creditor claims; this includes the State of New Jersey Division of Taxation for unpaid estate and inheritance taxes, if applicable.

An estate is only liable for debts up to the value of the assets of the estate, and administrators are bonded in relation to the estate’s total value to protect heirs and creditors in the event of waste, mismanagement, embezzelment, or neglect on the part of the administrator. Administrator’s bonds also ensure that each beneficiary who inherits under the intestacy statute receives proper distribution and the beneficiary is satisfied with the performance of the Administrator. Prior to distributing the final estate assets, the administrator must have heirs sign, notarize, and return refunding bonds which the administrator must file with the Surrogate to discharge the bond. This means the estate will no longer be charged an annual premium each year once the notarized refunding bonds are filed. The Surrogate then provides a Certificate of Release to the administrator, which the Administrator presents to the bonding agent releasing them from the Surety Bond. Remember, the administrator is personally bonded, not the estate! The administrator may then distribute the decedent’s estate pursuant to New Jersey Statute.

The Surrogate then issues Letters of Administration which is the authorization for the administrator to act on behalf of the estate and Administration Short Form Certificates which the administrator uses as proof of their authority to transfer or sell assets of the decedent to financial institutions and other third parties.

However, if no application for Letters of Administration is made within 40 days after the decedent’s death by a decedent’s family or named executors in a duly acknowledged Will, a creditor may apply for letters. An application is generally accompanied by affidavits of inquiry, and recites the interests of the party making application. Notice must be given to all parties in interest or renunciations must be submitted from them. As a rule, creditors are not appointed Administrators because their interests are adverse to those of the next-of-kin. If a creditor’s application for appointment to administration is challenged, the Surrogate may instead appoint a disinterested party, such as a local probate attorney.

In the case where there is no known next-of-kin, the Surrogate will require a letter from the Attorney General’s office to proceed with the appointment of a disinterested party.

Engaging with an experienced attorney can facilitate the intestate estate application process, helping ensure compliance with legal requirements and proper asset distribution.

Affidavit of Next of Kin or Surviving Spouse in Lieu of Administration or Probate

If the Decedent’s Death Is On or After February 19, 2007 to January 18, 2016

If the intestate dies with a surviving spouse, partner in a civil union or domestic partner and the value of the estate is equal to or less than $20,000 and up to $5,000 will be free from all debts of estate creditors, one of the next-of-kin, with renunciations from other equal degree next of kin, may file an affidavit in lieu of administration. If the intestate dies without leaving a surviving spouse, partner in a civil union or domestic partner and the value of the estate is equal to or less than $10,000, one of the next-of-kin, with renunciations from other equal degree next of kin, may file an affidavit in lieu of administration

The person applying (affiant) for an Affidavit in Lieu of Administration must verify the following information:

Determine the county the decedent resided in at the time of their death (can be found on the death certificate, unless the death certificate needs to be amended/corrected) to determine which County Surrogate’s Court probate is appropriate. The Affidavit of Next of Kin must be filed in the County where the decedent resided at the time of death. The affiant should bring an original or certified copy of the death certificate to the Surrogate at the time of application.
List all the assets in the decedent’s name alone in order to determine the number of true copies of the affidavits that will be required. Very specific information on each asset will be required ie. vehicle make, year, model, serial number and value.
List all next of kin with their full names and addresses, regardless if they are beneficiaries or not. If any next-of-kin are minors, list their ages. If there are any deceased next-of-kin, their children must be named.

The affiant must bring: (1) the decedent’s death certificate; (2) the decedent’s spouse’s death certificate of the spouse, if the spouse predeceased the decedent; and (3) a list of assets which specifically describes the nature, location, and value of each asset. The Affidavit of Surviving Spouse entitles the affiant to deal with only those assets listed. If additional assets are discovered later, and if the aggregate of the assets exceed $20,000, an application for general administration must be made. If the surviving spouse renounces or is unable to act pursuant to the procedure, a general administrator must be appointed. More then one next of kin may serve as a co-affiant.

The affiant must file renunciations from all competent adults whose right to letters is higher or equal to the affiant’s or, in lieu thereof, must produce sufficient notice such application has been given to all such persons. The affiant’s notice to others who may be granted letters may not be less than 10 days for residents of New Jersey, and 60 days for persons resident outside of New Jersey. The renunciations must be signed and notarized by those other competent adults with the same or greater right to Letters as the affiant, and the affiant must file with the Surrogate. Renounciations still entitle heirs the right to take their inheritance. However, the executor or administrator is the only person authorize to administer the estate prior to distributing to the probate beneficiaries.

The affiant must sign the Authorization to Accept Service of Process (Power of Attorney) in favor of the Surrogate empowering the Surrogate to accept service of process in any cause in which the fiduciary, in their capacity as, is party. If someone sues the estate and personal service cannot be affected, service of process may be made upon the Surrogate. The Surrogate must mail a copy of the Process to the fiduciary at the address on the Authorization.

A Child Support Verification must be signed by the affiant acknowledging that they have received a copy of N.J.S.A. 2A:17-56.23b advising the affiant of their obligation to determine if a child support arrangement existed prior to making estate distributions to beneficiaries in excess of $2,000 and to satisfy same prior to disbursement of funds to any beneficiary who is in arrears.

The Surrogate will issue an Affidavit of Next-of-Kin which will enable the affiant to receive the personal assets of the decedent for the benefit of all next-of-kin and creditors. Only the assets listed on the Affidavit may be transferred. If additional assets are discovered later, the affiant must apply to the Surrogate for an additional Affidavit of Next-of-Kin. If the aggregate of the assets exceed $20,000 with a surviving spouse or $10,000 if the intestate dies without leaving a surviving spouse, an application for general administration must be made.

If the Decedent’s Death Is On or after January 19, 2016

If the intestate dies with a surviving spouse, partner in a civil union or domestic partner and the value of the estate is equal to or less than $50,000 and up to $10,000 will be free from all debts of estate creditors, one of the next-of-kin, with renunciations from other equal degree next of kin, may file an affidavit in lieu of administration. If the intestate dies without leaving a surviving spouse, partner in a civil union or domestic partner and the value of the estate is equal to or less than $20,000, one of the next-of-kin, with renunciations from other equal degree next of kin, may file an affidavit in lieu of administration The affiant must verify the following information:

Determine the county the decedent resided in at the time of their death (can be found on the death certificate, unless the death certificate needs to be amended/corrected) to determine which County Surrogate’s Court probate is appropriate. The Affidavit of Next of Kin must be filed in the County where the decedent resided at the time of death. The affiant should bring an original or certified copy of the death certificate to the Surrogate at the time of application.
List all the assets in the decedent’s name alone in order to determine the number of true copies of the affidavits that will be required. Very specific information on each asset will be required ie. vehicle make, year, model, serial number and value.
List all next of kin with their full names and addresses, regardless if they are beneficiaries or not. If any next-of-kin are minors, list their ages. If there are any deceased next-of-kin, their children must be named.

The Surrogate will issue an Affidavit of Next-of-Kin which will enable the affiant to receive the personal assets of the decedent for the benefit of all next-of-kin and creditors. Only the assets listed on the Affidavit may be transferred. If additional assets are discovered later, the affiant must apply to the Surrogate for an additional Affidavit of Next-of-Kin. If the aggregate of the assets exceed $50,000 with a surviving spouse or $20,000 if the intestate dies without leaving a surviving spouse, an application for general administration must be made.

Potential Probate Litigation Considerations

Wills not Self-Proving

If the Will presented for probate has not been properly executed or the witnesses cannot be located and/or proper execution cannot be proven the Surrogate will deny probate of a Will and enter an Order of Doubt or Difficulty. The matter will then be addressed by the Superior Court, Chancery Division - Probate Part upon the filing of a Verified Complaint and Order To Show Cause. The probate matter is then forwarded to a Superior Court judge who determines whether the Will may be entered into probate.

If, after a Will has been probated, another Will of a later date is found or if, after letters of administration or letters testamentary have been granted, the existence of a Will is discovered, a Verified Complaint and Order To Show Cause must be filed with the Superior Court, Chancery Division - Probate Part. If any person in interest challenges the admission of the later-found Will to probate, the probate is halted until the lawsuit is settled or the trial is ended. If no beneficiary or next-of-kin challenges the Will or probate executor of the , the later Will is proven before the Court. The estate then administers probate in the normal course and strictly adheres to the provisions of the after-discovered Will.

Caveats and Probate Litigation

The Surrogate may not appoint an executor who has applied in the following scenarios: (1) a caveat is filed before the executor finalizes all paperwork and returns same to the Surrogate, (2) a doubt arises on the face of the Will or a copy of the Will is presented, (3) a non-resident’s Will is offered for probate and has no assets in that county, (4) the Surrogate certifies the case to be one of doubt or difficulty, or (4) a dispute arises as to any matter.

This means some litigation may be instituted before the executor is able to probate the Will. If a beneficiary or heir at law file a caveat, probate cannot continue until the caveat is withdrawn. A caveat is a legal tool putting the world at notice that someone is challenging either the validity of the Will, its creation, or the person applying for probate. It allows an heir at law or beneficiary to prevent a named executor from becoming appointed in the event there is mistrust or reason to believe the Will was created under unseemly circumstances. However, actions may also arise against the probate executor once they have accepted their position. Indeed, it is copmmon for probate executors to be sued, and it is important to note that the executor - and not the estate - is the party being sued (although the lawsuit is styled in the name of the estate, so this can be confusing)!

Some actions against executors in probate litigation are for an accounting to see the assets and expenses tallied by the executor. This is a crucial component of probate in New Jersey since probate beneficiaries inherit the net estate assets. A beneficiary or a creditor can request an accounting and even file a complaint to compel one. Similarly, probate beneficiaries can also compel the executor or administrator to produce source documents. This means as a beneficiary of a probate estate, you can file a complaint to force the executor or administrator to provide you with the bank statements, mortgage, deed, and so forth.

Other actions in probate litigation include removing or replacing the probate executor or administrator, or suing for damages due to the probate executor’s waste, mismanagement, and neglect. In certain instances, the executor or administrator may be liable for paying treble (or three times) damages because their actions in managing the probate estate was so negligent. Additionally, beneficiaries of a probate estate can sue to compel the production of a will, to challenge a will, to challenge the appointment of an executor or administrator, for partition of real property, against probate executors who abuse their fiduciary powers, for claims relating to the creation of the will - such as someone forcing the testator to leave assets to persons or in amounts to persons they would not have or did not want to outside of the influence of a third-party.

Executor Tasks After Probating the Will

Notice of Probate

Pursuant to Court Rule 4:80-6, after an application for Letters Testamentary from the County Surrogate, notice of the probated will must be sent to each next-of-kin and beneficiary. If a decedent’s next-of-kin includes someone who does not inherit from the probate estate, they must still be notified. Once the Notice of Probate has been sent to each next-of-kin and probate beneficiary, proof of mailing should be filed with the County Surrogate evidencing that notice of probate was properly served on each party. If the names or addresses of any of those persons are not known, or cannot by reasonable inquiry be determined, then reasonable efforts must be made to locate and identify possible interests in the probate estate. In some instances, the executor must also serve a notice of probate and copy of the will upon the Attorney General of New Jersey, for instance, if the Will devises probate assets for a charitable use or purpose (i.e. gifts to a charitable organization). It is therefore critical that each party is properly notified because parties that are not notified do get to file against the executor of the probate estate. Failure to properly notify the beneficiaries according to New Jersey probate and estate statutes may result in personal liability against the executor.

Child Support Judgment Search

Pursuant to N.J.S.A. 2A:17-56.23b, before distributing any net proceeds of a settlement, judgment, inheritance or award to the prevailing party or beneficiary in excess of $2,000, the executor is required to confirm that there are no child support judgments against any beneficiary standing to inherit $2,000 or more from the probate estate. This conforms with the executor’s general obligations to pay the decedent’s debts and taxes, to make distribution to the beneficiaries, and if required, to provide an accounting of their administration of the estate. If the search does return a child support judgment that is unpaid or in arrears, the executor must verify that the judgment is satisfied, or up to date, prior to distributing to that beneficiary.

Probate Creditors and Other Fiduciary Duties

Probate executors and administrators both owe duties of loyalty and care to the estate, but what exactly does that mean?

(1) Probate estates are comprised of assets and liabilities of the decedent: he assets, taken and held together, is called “corpus”. Corpus may gain interest or be invested, and such gains are likewise subject to taxes. Probate executors must file a tax form 1041 each year the estate is open disclosing these gains and paying any taxes that may be due. This is in addition to the last year of life taxes for the decedent (tax form 1040), and estate and inheritance taxes, if applicable. If real property is in the estate and to be devised, executors must obtain a waiver form 0-1 from the State of New Jersey, Department of Taxation and file same in the County Clerk’s Office in the county where the real estate is situated.

(2) Probate estates are also comprised of interested parties: beneficiaries, disinherited next of kin, spouses, children of the half-blood, and creditors. Creditors may be mortgagees (banks or lenders that provided mortgage or reverse mortgage loans), companies that are owed final or arrears payments (such as Verizon sending their bills), individuals who have won lawsuits against the decedent, and even the State of New Jersey for tax purposes.

Insolvent Probate Estates

Pursuant to N.J.S.A. 3B:22-4, the decedent’s creditors must present their claims to the executor in writing and under oath within nine months from the date of the decedent’s death. If a claim is not presented to the executor within the nine months from the date of the death, the executor is not held personally liable for what is considered early distribution of estate assets to beneficiaries. The debt may still need to be paid, and the executor must still ensure these debts are satisfied. If the estate does not have enough assets to satisfy all of its debts (most commonly because of mortgages or reverse mortgages on property), the executor must file a Verified Complaint and Order to Show Cause with the Superior Court informing the court, all interested parties, the State of New Jersey, and the Attorney General that the estate is insolvent and proposing a pro-rata distribution to pay each of the creditors and professionals. The executor cannot file for insolvency until the expiration of nine months from the date of the decedent’s death.

The estate executor must include the following when instituting an insolvency proceeding: (1) An estate accounting, in accordance with R. 4:87-3; and (2) a list of creditors that have properly filed claims with the executor within nine months from the decedent’s death. For each creditor, the executor must then state (1) the amount of the claim; (2) whether the executor is contesting or allowing the claim; (3) where the claim lies in priority to be satisfied, pro-rata; and (4) whether the claim is based on judgment, bond, note, book account, or otherwise. R. 4:91-1(b).

The court may, on the presentation of the report of claims and the presentation of the account, adjudge the estate to be insolvent and determine the amount of each claim and its priority for payment. R. 4:91-1(c). The statutory priority for claims and creditors is as follows:

Reasonable funeral expenses;
Costs and expenses of administration;
Debts for the reasonable value of services rendered to the decedent by the Office of the Public Guardian for Elderly Adults;
Debts and taxes with preference under federal law or the laws of New Jersey;
Reasonable medical and hospital expenses of the last illness of the decedent;
Judgments entered against the decedent; and
All other claims.

Probate Accountings

Informal Probate Accounting

An estate fiduciary need not render or settle an account if the fiduciary files with the court a release or discharge from the beneficiary, ward, or cestui que trust who has reached majority and is not incapacitated. N.J.S.A. 3B:17-1. The release or discharge shall be signed, notarized, and filed with the County Surrogate. Id. A personal representative of a probate estate may settle their account or be required to settle their account in the Superior Court; unless for special cause shown, the executor or administrator of the estate shall not be required to account until after the expiration of 1 year after their appointment. N.J.S.A. 3B:17-2.

However, an informal accounting may be requested by creditors or beneficiaries named under the Will. Interested parties may file for an accounting against the probate executor after one year from date of probate (N.J.S.A. 3B:17-2) unless good cause exists for an earlier accounting. If the executor refuses to comply with the request, an action may be brought in the Superior Court, Probate Part to compel a formal accounting. When all interested parties agree to an informal accounting and sign refunding bonds and releases, they waive their right to compel the probate executor to prepare a formal accounting by way of Verified Complaint and Order to Show Cause. However, if all parties interested in any separable part of an account, such as income, are of full age and competent, and so agree in writing, there need be no accounting as to the same. R. 4:87-9. This applies to both formal and informal probate estate accounts. N.J.S.A. 3B:17-13 reads:

Unless the governing instrument expressly provides otherwise, an instrument settling or waiving an account, executed by all persons whom it would be necessary to join as parties in a proceeding for the judicial settlement of the account, shall be binding and conclusive on all other persons who may have a future interest in the property to the same extent as that instrument binds the person who executed it.

Formal Probate Accounting

Alternatively, a formal probate accounting is submitted to the Superior Court, Probate Part for review and approval. These accountings are prepared by the administrator or executor of the estate and may be filed pursuant to R. 4:87-2 if the beneficiaries (or one of them) refuse to sign the refunding bond and release or if the executor is sued by a party in interest.

The primary purpose of a formal probate accounting is to ensure transparency and accountability in the administration of the estate. It typically includes a comprehensive overview of all assets owned by the decedent at the time of death, including real estate, bank accounts, investments, and personal property. Additionally, it outlines all liabilities, such as debts and expenses incurred during the probate process, which may include funeral costs, legal fees, and taxes. Either the executor files a Verified Complaint and Order to Show Cause, or one is filed against the executor requesting an accounting. Per R. 4:87-1, The complaint in an action for the settlement of an account:

(a) shall contain the names and addresses of all persons interested in the account, including any surety on the bond of the fiduciary, specifying which of them, if any, are minors or mentally incapacitated persons, the names and addresses of their guardians, or if there is no guardian then the names and addresses of the parents or persons standing in loco parentis to the minors;
(b) shall specify the period of time covered by the account and contain a summary of the account. The summary shall state, all as shown by the account: (1) in the case of a first accounting, the amount for which the accountant was chargeable as of the date the trust or obligation devolved upon him or her, or where an inventory is on file, the amount of the inventory; or in the case of a second or later accounting, the balance remaining in the hands of the accountant as shown in the last previous account; (2) the amount for which the accountant became chargeable in addition thereto; (3) the total of the first two items; (4) the amount of the allowances claimed in the account; and (5) the balance in the accountant's hands. Charges and allowances sought on account of corpus and income shall be stated separately both in the summary and in the account;
(c) shall have annexed thereto the account which shall be dated;
(d) shall ask for the allowance of the account, and also for the allowance of commissions and a fee for the accountant's attorney, if accountant intends to apply therefor; and
(e) shall be filed at least 20 days prior to the day on which the account is to be settled.

The charges and allowances as to principal and income and the statements required to be annexed to the account may be typed or in the form of computer or machine printouts; and, where appropriate, the accountant may use a single schedule for the presentation of portions of the account, but charges and allowances as to corpus and income shall be stated separately. R. 4:87-3(a). The account shall have the following information, per R. 4:87-3(b):

(1) a full statement or list of the investments and assets composing the balance of the estate in the accountant's hands, setting forth the inventory value or the value when the accountant acquired them and the value as of the day the account is drawn, and also stating with particularity where the investments and assets are deposited or kept and in what name;
(2) a statement of all changes made in the investments and assets since they were acquired or since the day of the last account, together with the date the changes were made;
(3) a statement as to items apportioned between principal and income, showing the apportionments made;
(4) a statement as to apportionments made with respect to transfer inheritance or estate taxes;
(5) a statement of allocation if counsel fees, commissions and other administration expenses have been paid out of corpus, but the benefits of the deductions from corpus have been allocated in part or in whole to income beneficiaries for tax purposes; and
(6) a statement showing how the commissions requested, with respect to corpus, are computed, and in summary form the assets or property, if any, not appearing in the account on which said commissions are in part based.

Once completed, the formal accounting is filed with the appropriate probate court, and notice is typically provided to beneficiaries and interested parties. A hearing may be scheduled to address any objections or questions regarding the accounting. The court must approve the accounting before the executor may make final distribution of estate assets.

Proper preparation of a formal probate accounting is critical. Failure to accurately account for all transactions and comply with court procedures can lead to legal disputes and delays in the distribution of the probate estate. As such, it is advisable for personal representatives to seek legal guidance to navigate this complex and often detailed process effectively.

Closing Out the Probate Estate

While there is no formal way to close a probate estate, there are precautions executors can take to ensure they are protected. First, an executor or administrator that is bonded must have beneficiaries sign and notarize a refunding bond before distributing estate assets to beneficiaries and file it in the office of the surrogate of the county wherein he received his letters or in the office of the clerk of the Superior Court, if he received his letters from the Superior Court. N.J.S.A. 3B:23-24. This is then forwarded to the bondsman who will discharge the bond requirements from the executor and stop requesting annual payments from the probate estate.

If the probate executor is not bonded, they may still request beneficiaries to file a release stating the beneficiary has received their inheritance and releases the executor against all claims unless the release was signed because of a fraud, misrepresentation, mismanagement, undue influence, or if there was a substantial misunderstanding by the beneficiary which caused the beneficiary to forgo a formal accounting. It is common, even if beneficiaries sign these releases, for executors to be sued for an accounting later. This is why it may be important to provide an estate accounting and allow beneficiaries to review it prior to distribution. The relase can then include language that the beneficiary signing it acknowledges receipt of the accounting and waives any claims relating to it against the executor.

Once all estate debts are satisfied, the refunding bonds and releases are filed with the Surrogate, the estate assets are distributed, and the estate’s bank account is closed out, the estate may be considered “closed”. There should, at this point, be no assets - whether real or personal - left in the name of the decedent. At that point, the executor has performed their fiduciary obligations and should hold onto their records for a few years in case any interested party wishes to request information or makes a claim. It is not uncommon for municipalities to request information from the probate executor regarding the transfer of real estate if the property was in poor condition and sold less than the value of other properties in the neighborhood. However, with the proper documentation - which the executor should have and keep - that would not be a problem.

If you are named as an executor in a Will or are looking to probate an intestate estate, and have questions or concerns regarding your fiduciary obligations and protecting both yourself and the estate, give me a call or email me. You can call me at (551) 222-0555 or email me at Ranalli@ranalli-law.com.

Rob Ranalli