What is Probate?

by Kenneth A. Vercammen, Esq.

Probate is the process where after death the instructions of the Will are
carried out. Will is admitted to Probate in the ounty !urro"ate. !ome people
refer to the !urro"ate as the Will ler#. $pon the death of the testator or testatri%
&ma#er of the Will', the probate procedure can be"in. (his is the le"al process
which establishes the "enuineness of the Will. )t is done by the !urro"ate in the
county where the testator or testatri% resided at the time of death.
(he probate application must contain the followin" information*
+. the applicant,s residence-
.. the name, domicile and date of death of the decedent-
/. the names and addresses of the decedent,s spouse, heirs &those entitled to
ta#e under the laws of interstate succession', and any person named to ser0e as
E%ecutor-
1. the a"es of any minor heirs- and
2. the names of the testator,s children when the Will was made and the names of
children born and adopted after the Will was made, or their children, if any.
(o minimi3e time spent in the !urro"ate, it is recommended, and in some
counties required, that before an E%ecutor submits the Will for probate the
e%ecutor4s attorney or e%ecutor send the ourt*
+' a 5data sheet5 &referred to in some counties as an 5information sheet5 or a
5fact sheet5' containin" the information needed by the !urro"ate to complete the
application-
.' a copy of the Will- and
/' a copy of the death certificate.
6)7)89 A P:;<A(E APP7)A();8 $pon the death of a person, a probate
proceedin" may be commenced by offerin" the decedent,s &the dead person,s '
last Will for probate in the !urro"ate,s ourt of the county in which the decedent
was domiciled at death. :. 1*=>?+&a'. 9enerally, the E%ecutor nominated in the
Will brin"s the proceedin" by filin" a 0erified application with the ourt.
When the applicant files the ori"inal Will for probate, the applicant must
also file a death certificate &and ori"inal with a raised seal'. A filin" fee of
appro%imately @+2> must be paid. ;nce the Will, application and death certificate
are filed, the !urro"ate will re0iew the papers, and if there are no irre"ularities or
obAections, admit the Will to probate. Althou"h 8ew Bersey law prohibits
admission of a Will to probate within +> days of the testator,s death, an applicant
may submit the application prior to e%piration of the +>?day period. )f the Will is
filed after the +>?day waitin" period, many ourts will issue a Aud"ment for
probate contemporaneously with the filin" of the probate papers.
Cualifyin" the E%ecutor
;nce the Will is admitted to probate, the ourt will issue letters testamentary to
an E%ecutor who has properly qualified to ser0e. An E%ecutor named in a Will
qualifies to ser0e by filin" a form affida0it in which the E%ecutor a"rees to perform
his or her duties. (he nominated E%ecutor must also pro0ide a power of attorney
to the !urro"ate empowerin" the !urro"ate to accept ser0ice of process of
claims a"ainst the estate. ;nce the E%ecutor qualifies, the ourt then issues
letters testamentary.
Dailin" Probate 8otices
After a Will is admitted to probate, the E%ecutor4s Attorney or E%ecutor
must mail within E> days a notice of probate to the decedent,s spouse, heirs and
all beneficiaries under the Will. (he notice of probate should contain the
e%ecutor,s name and address, place and date that the Will was probated, and an
offer to furnish a copy of the Will upon request. Within +> days of mailin" the
notice the E%ecutor4s Attorney or E%ecutor should file proof of ser0ice of the
notice with the !urro"ate,s ourt. ;nce notice of probate has been sent and
proof of mailin" has been filed the probate process is essentially completed.
ompletin" the probate process should cause only minimal delay, perhaps a few
wee#s, in administerin" a decedent,s affairs. (he cost of admittin" a Will to
probate should be limited. $nli#e in some other states, the !urro"ate,s filin" fee
in 8ew Bersey is the same re"ardless of the si3e of the estate. !ee Fimiles
5Probate is not a Girty word in 8ew Bersey5 8.B. 7awyer p". +1 & BulyHAu"ust
+II.'
Jow do ) be"in the probate procedureK
(he E%ecutor or personal representati0e can be appointed and the Will admitted
to probate in most cases by "oin" to the !urro"ate,s ourt with the ori"inal Will,
certified death certificate, and, if the Will is not self?pro0en, at least one of the
witnesses who si"ned the Will must pro0e the si"nature on the Will.
Jow is an administrator appointed when there is no WillK
When there is no Will, an administrator, administratri% or personal representati0e
is appointed by the !urro"ate,s ourt. (he sur0i0in" spouse has the first ri"ht to
apply for the position of administrator- howe0er, any heir of the decedent may be
appointed. When one of se0eral heirs see#s to be appointed administrator, all
other heirs must renounce their ri"ht to be appointed administrator. )n most
cases, a surety bond must be furnished to co0er the 0alue of the real and
personal property in the estate.
What #ind of information should ) collectK
(he decedent,s personal representati0e should ma#e a list of all of the ne%t of #in
of the person who died, alon" with their de"ree of relationship, addresses and
a"es.
What if the Will is not properly e%ecutedK
(he !urro"ate will ad0ise the personal representati0e as to the proper procedure
in order to allow the Will to be admitted to probate. (his procedure normally
in0ol0es a formal hearin" before a Bud"e of the !uperior ourt.
Jow soon must state inheritance ta%es be paidK
!tate inheritance ta% returns must be filed and the ta% paid within ei"ht &='
months after decedent,s death to a0oid interest.
Are unpaid inheritance ta%es a lien on propertyK
Les, to sell real estate, you Will need to obtain 5ta% wai0ers5 from the 8ew Bersey
!tate (ransfer )nheritance ,(a% <ureau, and the wai0ers must be filed with the
ounty ler# in the county where the land is located. 7and held by husband and
wife as 5tenants by the entirety5 need not be reported and may be transferred
without a wai0er. ;ther property may be subAect to a lien for unpaid inheritance
ta%es such as ban# accounts and certificates of deposit.
Jow about federal estate ta%esK
)n .>>= there is no federal ta% due unless the estate e%ceeds @.,>>>,>>>.
Jowe0er, there is a 8ew Bersey Estate ta% for estates o0er @EM2,>>>.
(here is also an unlimited federal marital deduction, which means unlimited
amounts of property can be transferred between spouses without estate of "ift
ta%es.
Jow many !urro"ate,s ertificates &5!horts5' Will ) needK
A list of all of the assets of the estate should also be prepared to help determine
the number of !urro"ate,s ertificates that must be issued by the probate cler# in
the !urro"ate,s ;ffice.
When is the Will admitted to probateK
After all the proper forms are filed with the probate cler#, the cler# will prepare a
Aud"ment which admits the Will to probate. (he !urro"ate then si"ns the
Aud"ment and issues 57etters (estamentary.5
What are !urro"ate,s ertificates used forK
!urro"ate,s ertificates act as e0idence of the authority of the personal
representati0e & E%ecutor, Administrator, (rustee ' to act. (hese certificates are
necessary to accomplish certain tas#s such as transferrin" stoc#s, closin" ban#
accounts, etc.
)s it necessary to send copies of the Will to the beneficiariesK
6rom the time the Will is probated, the E%ecuter has E> days to mail all
beneficiaries a notice that they can be pro0ided with a copy of the Will, alon" with
a notice "i0in" the specific date and place the Will was entered into probate. !ee
Fimiles 5Probate is not a Girty word in 8ew Bersey5 8.B. 7awyer
<asically, what is the E%ecutorHAdministrator required to doK
(he E%ecutor or Administrator is, in "eneral, required to collect and safe"uard all
of the assets of the estate and e0entually to pay the debts of the decedent, as
well as any ta%es due, and be able to pro0ide an accountin" of his actions to the
beneficiaries or heirs. An E%ecutor or Administrator must obtain the necessary
le"al documents, called either 7E((E:! (E!(ADE8(A:L &for an E%ecutor' or
7E((E:! ;6 AGD)8)!(:A();8 &for an Administrator', are obtained throu"h
the !urro"ate in the county in which the GEEGE8( &the deceased person'
resided at the time of death.
(he duties of the personal representati0e include*
N ? findin" the Will and ha0in" it P:;<A(EG. Probate is the le"al procedure used
to establish the 0alidity of a Will.N ? locatin" and protectin" the assets of the
estate.N ? findin" and notifyin" the heirs.N ? payin" the debts, e%penses, and ta%es
of the estate from the assets of the estate.N ? complyin" with the requirements of
state and federal law.N ? distributin" property to the heirs after all proper
procedures ha0e been followed.
)s an attorney necessary in estate administrationK
As a practical matter, it is 0ery difficulty for a nonlawyer to correctly follow the
required procedures in administerin" an estate without the assistance of an
attorney. (he personal representati0e selects the attorney for the estate. Lou
may wish to call your attorney to "i0e you further ad0ice as to specific duties and
obli"ations.
Where does the E%ecutorHAdministrator obtain the funds to pay debtsK
(he E%ecutor may, in most cases, withdraw up to one?half of the funds in the
decedent,s 8ew Bersey ban# accounts. 9enerally, the E%ecutor should open an
estate chec#in" account which can be used to recei0e and disburse funds.
Am ) entitled to compensation for actin" as E%ecutor or AdministratorK
An E%ecutor or Administrator is entitled to corpus commissions of 2O of the first
@.>>,>>>.>> of estate assets subAect to administration, /?+H.O on the e%cess
o0er @.>>,>>>.>> up to @+,>>>,>>>.>> and .O or such other percenta"e as the
ourt may determine on the e%cess o0er @+,>>>,>>>.>>.
)f there is more than one E%ecutor or Administrator, an additional +O corpus
commission may be allowed by the ourt for each additional E%ecutor or
Administrator.
)n addition to corpus commissions, an E%ecutor or Administrator is entitled to
income commissions of EO of income earned on estate corpus durin" the
administration of the estate.
What do ) do about a safe deposit bo% in the name of the decedent K
)ndi0iduals "enerally #eep their Will in their safe deposit bo%. (he personal
representati0e is permitted to remo0e the ori"inal Will, as well as a deed to a
cemetery plot and certain life insurance policies from the decedent,s safe deposit
bo% before probate without a representati0e of the )nheritance (a% <ureau
present.
Jow do ) handle Aoint ban# accounts or certificates of depositK
ertain ban# accounts and certificates may be owned with ri"hts of sur0i0orship,
which means that upon the death of one party to the account, the sur0i0in" party
&or parties' become the sole owner &or owners'. )f the decedent maintained such
an account, the sur0i0or Will be able to withdraw on?half of the funds in the
account by "i0in" the ban# a Geath ertificate and without the need to pro0ide
anythin" from the !urro"ate. (he other half will not be released until a ta% wai0er
is issued by the 8ew Bersey (ransfer )nheritance (a% <ureau, normally after the
ta% is paid and the return is filed.
)s all this paperwor# necessary e0en on small estatesK
(here is a procedure whereby the assets of small estates can be transferred to
the sur0i0in" spouse without the necessity of administration. (he spouse files an
affida0it statin", amon" other thin"s, that the decedent had no Will and that all of
the real and personal assets of the decedent do not e%ceed @+>,>>>.

Jow do ) pro0e that le"acies were paidK
(he E%ecutor has a duty to pay the le"acies or distribute shares as pro0ided for
under the Will- howe0er, when he Hshe does so, heHshe must ta#e a :elease and
:efundin" <ond from the person ta#in" the share. (he :efundin" <ond is then
forwarded to the !urro"ate for filin" and recordin".
What if there is no WillK
)f the decedent dies without a Will &intestate', there is a statute which determines
to whom the decedent,s property is to be distributed accordin" to the de"ree of
family relationship.
Kenneth A. Vercammen is a Diddlese% ounty, 8B trial attorney who has
published +.2 articles in national and 8ew Bersey publications on Probate and
liti"ation topics. Je often lectures to trial lawyers of the American <ar Association,
8ew Bersey !tate <ar Association and Diddlese% ounty <ar Association. Je is
hair of the American <ar Association Estate Plannin" P Probate ommittee. Je
is also Editor of the A<A Elder 7aw ommittee 8ewsletter
Je is a hi"hly re"arded lecturer on liti"ation issues for the American <ar
Association, )7E, 8ew Bersey !tate <ar Association and Diddlese% ounty <ar
Association. Jis articles ha0e been published by 8ew Bersey 7aw Bournal, A<A
7aw Practice Dana"ement Da"a3ine, and 8ew Bersey 7awyer. Je is the Editor
in hief of the 8ew Bersey Dunicipal ourt 7aw :e0iew. Dr. Vercammen is a
recipient of the 8B!<A? L7G !er0ice to the <ar Award.

)n his pri0ate practice, he has de0oted a substantial portion of his
professional time to the preparation and trial of liti"ated matters. Je has
appeared in ourts throu"hout 8ew Bersey se0eral times each wee# on many
personal inAury matters, Dunicipal ourt trials, and contested Probate hearin"s.

KENNETH VERCAMMEN
Attorney at Law
Lega Res!me
.>2/ Woodbrid"e A0e.
Edison, 8B >==+M
M/.?2M.?>2>>
www.centralAerseyelderlaw.com