Answers to Questions in Probate and Estate Administration

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.
6ore )nformation at http*77n8laws.com7answers9to9probate.htm
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:);)<= A P>?@A(E APP;)A()?< $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*ABC
+&a'. =enerally, 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 D+2B 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 ob8ections, admit the
Will to probate. Althou"h <ew Eersey law prohibits admission of a Will
to probate within +B days of the testator,s death, an applicant may
submit the application prior to e%piration of the +BCday period. )f the
Will is filed after the +BCday waitin" period, many ourts will issue a
8ud"ment for probate contemporaneously with the filin" of the probate
papers.
Fualifyin" 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.
6ailin" Probate <otices
After a Will is admitted to probate, the E%ecutor4s Attorney or
E%ecutor must mail within GB 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 +B days of mailin" the notice the
E%ecutor4s Attorney or E%ecutor should file proof of ser0ice of the
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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 <ew Eersey is the same
re"ardless of the si3e of the estate. !ee Himiles 5Probate is not a
Iirty word in <ew Eersey5 <.E. ;awyer p". +1 & Euly7Au"ust +JJ.'
Kow do ) be"in the probate procedureL
(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 selfCpro0en, at least one of the witnesses who si"ned the Will
must pro0e the si"nature on the Will.
Kow is an administrator appointed when there is no WillL
When there is no Will, an administrator, 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 ) collectL
(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%ecutedL
(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 Eud"e of
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the !uperior ourt.
Kow soon must state inheritance ta%es be paidL
!tate inheritance ta% returns must be filed and the ta% paid within
ei"ht &A' months after decedent,s death to a0oid interest.
Are unpaid inheritance ta%es a lien on propertyL
Mes, to sell real estate, you Will need to obtain 5ta% wai0ers5 from the
<ew Eersey !tate (ransfer )nheritance ,(a% @ureau, and the wai0ers
must be filed with the ounty ler# in the county where the land is
located. ;and 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 sub8ect to a lien for unpaid inheritance ta%es such as
ban# accounts and certificates of deposit.
Kow about federal estate ta%esL
)n .BBA there is no federal ta% due unless the estate e%ceeds
D.,BBB,BBB. Kowe0er, there is a <ew Eersey Estate ta% for estates
o0er DGN2,BBB.
(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.
Kow many !urro"ate,s ertificates &5!horts5' Will ) needL
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 probateL
After all the proper forms are filed with the probate cler#, the cler# will
prepare a 8ud"ment, which admits the Will to probate. (he !urro"ate
then si"ns the 8ud"ment and issues 5;etters (estamentary.5
What are !urro"ate,s ertificates used forL
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!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 beneficiariesL
:rom the time the Will is probated, the E%ecuter has GB 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 Himiles 5Probate is not a Iirty word in
<ew Eersey5 <.E. ;awyer
@asically, what is the E%ecutor7Administrator required to doL
(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 ;E((E>! (E!(A6E<(A>M &for an
E%ecutor' or ;E((E>! ?: AI6)<)!(>A()?< &for an Administrator',
are obtained throu"h the !urro"ate in the county in which the
IEEIE<( &the deceased person' resided at the time of death.
(he duties of the personal representati0e include*
O C findin" the Will and ha0in" it P>?@A(EI. Probate is the le"al
procedure used to establish the 0alidity of a Will.O C locatin" and
protectin" the assets of the estate.O C findin" and notifyin" the heirs.O C
payin" the debts, e%penses, and ta%es of the estate from the assets
of the estate.O C complyin" with the requirements of state and federal
law.O C distributin" property to the heirs after all proper procedures
ha0e been followed.
)s an attorney necessary in estate administrationL
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. Mou may wish to call your attorney to "i0e you
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further ad0ice as to specific duties and obli"ations.
Where does the E%ecutor7Administrator obtain the funds to pay
debtsL
(he E%ecutor may, in most cases, withdraw up to oneChalf of the
funds in the decedent,s <ew Eersey ban# accounts. =enerally, 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
AdministratorL
An E%ecutor or Administrator is entitled to corpus commissions of 2P
of the first D.BB,BBB.BB of estate assets sub8ect to administration, /C
+7.P on the e%cess o0er D.BB,BBB.BB up to D+,BBB,BBB.BB and .P or
such other percenta"e as the ourt may determine on the e%cess
o0er D+,BBB,BBB.BB.
)f there is more than one E%ecutor or Administrator, an additional +P
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 GP 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 L
)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.
Kow do ) handle 8oint ban# accounts or certificates of depositL
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
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Will be able to withdraw onChalf of the funds in the account by "i0in"
the ban# a Ieath 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 <ew Eersey (ransfer )nheritance (a% @ureau,
normally after the ta% is paid and the return is filed.
)s all this paperwor# necessary e0en on small estatesL
(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 D+B,BBB.

Kow do ) pro0e that le"acies were paidL
(he E%ecutor has a duty to pay the le"acies or distribute shares as
pro0ided for under the Will- howe0er, when he 7she does so, he7she
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 WillL
)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 6iddlese% ounty, <E trial attorney who
has published +.2 articles in national and <ew Eersey publications on
Probate and liti"ation topics. Ke often lectures to trial lawyers of the
American @ar Association, <ew Eersey !tate @ar Association and
6iddlese% ounty @ar Association. Ke is hair of the American @ar
Association Estate Plannin" Q Probate ommittee. Ke is also Editor
of the A@A Elder ;aw ommittee <ewsletter
Ke is a hi"hly re"arded lecturer on liti"ation issues for the
American @ar Association, );E, <ew Eersey !tate @ar Association
and 6iddlese% ounty @ar Association. Kis articles ha0e been
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published by <ew Eersey ;aw Eournal, A@A ;aw Practice
6ana"ement 6a"a3ine, and <ew Eersey ;awyer. Ke is the Editor in
hief of the <ew Eersey 6unicipal ourt ;aw >e0iew. 6r.
Vercammen is a recipient of the <E!@AC M;I !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.
Ke has appeared in ourts throu"hout <ew Eersey se0eral times
each wee# on many personal in8ury matters, 6unicipal ourt trials,
and contested Probate hearin"s.

KENNETH VERCAMMEN
Attorney at Law
Lea! Resume
.B2/ Woodbrid"e A0e.
Edison, <E BAA+N
N/.C2N.CB2BB
www.central8erseyelderlaw.com
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