We offer confidential virtual Zoom meetings to keep you safe and healthy.

Probate

When someone dies, they leave behind an estate. That includes property (real property, personal property and intellectual property), their minor children, and their accounts; their money. A key question is: What is to be done with the dead person’s estate and who is going to do it?

The first step is to determine whether the deceased left instructions regarding the disposition of their remains (typically burial or cremation). The deceased could have accomplished this by creating an Appointment of Agent to Control the Funeral and Disposition of Remains. N.J.S.A. 45:27-22.

The next step involves locating the person’s original Last Will and Testament and making certain the directions contained within it are lawful. This occurs by forwarding the original Last Will and Testament, along with the deceased’s Death Certificate and completed forms, to your local surrogate. In some situations, such as with larger estates, the Surrogate’s Court will require that the estate post a bond prior to commencing the estate administration.

Should the surrogate deem the will valid, the surrogate will issue what is known as Letters Testamentary – an official statement by the court that the will is valid under the law and has been admitted to probate. Although Letters Testamentary is a plural phrase, this is often just a single document with a seal.

A Last Will and Testament should always name an executor and an alternate executor (should the primary executor be unwilling or unable to act). The executor is responsible for administering the estate in accordance with Last Will and Testament and applicable law. The executor’s duties include paying the deceased’s debts (such as expenses of their last illness, funeral and burial expenses, and outstanding debts, such as a mortgage and credit card.), collating the deceased’s assets, and disbursing estate assets to named beneficiaries. The surrogate will issue an Executor Certificate that permits the executor to conduct the business of administering the estate.

Once the will has been admitted to probate, and once the surrogate has given official permission for the executor to act, the executor should collate the deceased’s assets. Some assets (such as furniture and cash) will be controlled by the deceased’s Last Will and Testament and some (accounts with payable on death beneficiaries such as life insurance policies and retirement accounts) will not be controlled by the decedent’s will. Nevertheless, the executor needs to generate a listing of all assets.

The executor will need to open an estate account, a bank account in the name of the estate that contains only estate funds. Because the estate is a separate legal entity, the estate account will need a separate tax number or EIN. This can be obtained through the IRS website. The executor should never sign in their individual capacity when signing documents on behalf of the estate. And just as the executor should never simply help himself or herself to estate assets (even if they are also a beneficiary under the will), they should create a listing of all monies that they personally expended to administer the estate.

There will be other functions required before estate assets can be disbursed to beneficiaries. These requirements will take time. All the while, executor can expect beneficiaries to question the executor’s progress and decisions. As a result, the executor will need to use tremendous patience and communication skills while also handling the time-consuming and detailed task of administering an estate.

Get In Touch With Us

Facebook LinkedIn