Demystifying the Probate Process
To some, the phrase, “going through probate,” raises alarm. But probate does not have to be a feared or “scary” process. In fact, almost every Estate will go through probate. If you die leaving assets that do not already have a named beneficiary or are jointly owned or passing through a Trust, then most likely, your Estate will have to go through probate. The Court will then appoint someone to administer and distribute these assets.
What is Probate?
When an individual passes away, with or without a Will, their Estate and any assets they leave behind will go through probate. So, what is probate exactly? Probate is the Court process in which either an Administrator or an Executor is appointed and given the authority to administer and oversee the assets of the Estate. An Executor will be appointed if the individual died “testate” (having a Will), and an Administrator will be appointed if the individual died intestate (without leaving a Will.
How do you Become an Administrator?
In New Jersey there is an order of priority in which an Administrator will be appointed, starting with the deceased individual’s spouse, domestic partner or civil union partner. Next in priority are children, then grandchildren, then parents, then siblings, and so on further down the family line. If no one comes forward to become an administrator within 40 days of the passing of the individual, the Court may appoint a more distant relative or possibly an individual requesting to serve as Administrator. The Administrator will need to present the death certificate and fill out an application for administration. Once everything has been presented and processed, the proposed Administrator will have to pay a bond as a financial guarantee. Then the Administrator will receive Letters of Administration, which will allow them to fulfill their duties as the Administrator.
How do you Become an Executor?
If the individual passed away with a Will, the Will directs who shall be appointed as the Executor. If you are the individual named as the Executor in the Will you must take the original Will, original Death Certificate, and fill out a Will Fact Sheet and bring those documents to the Court. The Court will verify the information and appoint the Executor. The Executor will receive Letters Testamentary, which will allow them to fulfill their duties as Executor. As the proposed Executor you may also hire an attorney to help you with the Court process.
What are your Obligations as the Administrator or Executor?
As the Administrator or Executor of the Estate your job is to notify the beneficiaries of the passing of the decedent and provide them with a copy of the Will, if there is one, pay all of the individual’s debts and distribute the probate assets. “Probate assets” are assets without designated beneficiaries or which are not jointly owned. Assets that were pay-on-death accounts, joint assets, passed through a Trust, or had beneficiaries associated with them, do not pass through probate, and are therefor not administered by the Executor or Administrator. Once the debts have been paid, the assets can be distributed to the beneficiaries. A formal Release and Refunding Bond should be filed with the Court for each beneficiary upon receipt of their share of the Estate. In New Jersey there is no formal closing or termination of an Estate proceeding.
Hopefully the above, although just a brief overview, will help demystify the probate process. However, if the process still seems daunting, our office is always here to help.
Gabrielle G. Drillich, Esq.
(201) 799-2109
gdrillich@beattielaw.com
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