Probating a Will in Ocean County, and then administering the Estate, is not difficult, but it will require organization and attention to detail. If the Estate is small, the Will is “self proving” and the assets and beneficiaries are easily found, you will probably be able to administer the Estate on your own. If not, you may need the assistance of a lawyer. The purpose of this article is to give you an outline of what needs to be done, and alert you to areas that may require the assistance of an attorney. If you have been named as an Executor of an Estate, and are unsure of what to do, or if you live outside of New Jersey and cannot do what is needed, you can retain an attorney to assist you with probate.
The first step is to locate the original Last Will and Testament. Turn to the last page of the document. Does it have two signatures are witnesses? Are the witnesses’ signatures attested to by a Notary Public? Has the Notary signed and sealed their signature? You will be able to feel the raised seal. Notaries no loner need to use the seal, so if the Will was done very recently, it may not have a raised seal. If you can answer “yes” to these questions, the Will is “self proving” and you can go directly to the Ocean County Surrogate’s Office for probate. If you cannot locate the original Will, or the Will doesn’t have the signatures described above, you may need the assistance of an attorney to probate the Will. If you can’t find even a copy of a Will, or know that the person died without a Will, the Estate will be “intestate” and more difficult to probate.
The word “probate” means to register, and probating the Will, or registering the Will, gives a person the authority to act on behalf of the Estate. Usually, the decedent, the person who has passed a way, names a person to serve as the Executor of the Estate. The person named as the Executor takes the Will to the Ocean County Surrogate’s Office. The Office is located at 118 Washington Street, Toms River, NJ. http://www.oceancountygov.com/surrogat/default.htm. There is no need to make an appointment at the Surrogate’s Office, you can walk right in. Bring the original Will, an original death certificate, and a check to cover the cost of probate. The fees are listed on the website listed above. Before you go, try to make an inventory of the assets you think are in the Estate so you know how many accounts are in the decedent’s name, and the total value of the assets, including real estate.
After probating the Will, the Surrogate’s Office will issue Letters Testamentary. The Office will send these documents directly to the Executor of the Estate. Each Letter has the raised seal of the Surrogate. The Letter, along with a Death Certificate, is evidence that the Executor is the person with the authority to take actions on behalf of the Estate. You will need a separate Letter Testamentary (also known as a Surrogate’s Certificate) for each action you need to take. For example, if the person who passed away has a checking account, a savings account, a house that needs to be sold, and an investment account, you will need four Letters. The Surrogate’s Office issues three Letters as part of the probate, and additional Letters can be purchased for a small fee.
Once you have the Letter Testamentary, get an EIN number for the Estate. An EIN is a separate tax payer identification number that you will use for the Estate much like a person uses their own Social Security Number. You can apply for an EIN on line. If you apply online, you will get an EIN immediately and can begin using it. If you mail in the forms, you will have to wait until you receive a letter giving you the EIN. As soon as you have the EIN, take a Letter Testamentary, a Death Certificate and the EIN to the bank of your choice and open an estate account. Sometimes people open the Estate account in the same bank where the decedent had their accounts, but if that is not convenient for you, open the estate account in your own bank. You will then liquidate all of the accounts owned by the decedent, and deposit the money into the Estate Account.
Take time to read through the Will very thoroughly. Are there specific items or dollars amounts that go to people or organizations named in the Will? Do you know each of these people or organizations and know how to get in touch with them? Everyone who receives something from the Estate is called a beneficiary and the Executor of the Estate must notify the heirs and next of kin, and the beneficiaries that are listed in the Will, and provide them with a copy of the Will.
If the decedent owned a house at the time of death, the Executor is responsible for maintaining that house until it can be sold, or transferred as stated in the Will. If the house goes directly to one person as a beneficiary, the Executor can retain an attorney to prepare a Deed to transfer the property. If the house is to be sold, and the proceeds divided among several beneficiaries, then the Executor needs to hire a realtor, and list the house for sale. While the house is on the market, the Executor should continue to pay the utilities, taxes, insurance and mortgage (if any) using the decedent’s money. The payments will come from the Estate account.
It may be necessary to file State and/or Federal Estate Tax returns for the Estate, depending on the amount of assets in the estate, and the beneficiaries. http://www.state.nj.us/treasury/taxation/revesttax.shtml If the Estate is over $675,000 or if the beneficiaries are not relatives, or live out of State, the Executor may need to file tax returns and receive waivers from the State of New Jersey before transferring or liquidating certain assets. If the Estate falls into this category, you may need to consult an attorney and an accountant to help you with administering the Estate.
Tips to finding assets: Look at a copy of the decedent’s last federal tax return. You will be able to see what interest they received, and the income from their investments, as well as Social Security and pension payments, annuity, IRA, 401(K) and other retirement account payments, they received. Look for dividend payments which could mean stock accounts, or certain types of life insurance. Look through the check register for the checking account for premium payments, and deposits. Go through the bank statements and see if there is a charge for rental of a safe deposit box, and look through the house for an in-home safe or strong box. Also, go to the New Jersey Unclaimed Property Website and run a search using the last name of the decedent.
Use the funds you are depositing into the estate account to pay all of the bills of the decedent including the expenses of the last illness, funeral (if there was no pre-paid funeral) and the utilities on the house if there is a house. As the Executor, you will also be able to pay yourself a commission, that is based on the total value of the Estate.
Once you have identified and liquidated all of the estate assets, and paid all of the estate debts, including the executor’s commission, pay any specific bequests. What ever is left is called the “residue” and goes to all of the beneficiaries listed in the Will. It is common to have those beneficiaries listed in a group, and for the Will to say “I leave all the rest and residue of my estate to the following people in equal shares, share and share alike”. If the Will contain language similar to this, determine the amount left after all bills are paid, and divide that amount equally with one share for each person listed. Follow the distribution listed in the Will. Once you have calculated the amount going to each person, have each person sign a release before you give them the money. Forms for the release can be found on the Ocean County Surrogate’s website. http://www.oceancountygov.com/surrogat/forms/default.htm
If you have any of the following things – you may need an attorney:
An Estate over $675,000
Out of state beneficiaries, or beneficiaries that you can’t find, or beneficiaries that have died
Missing assets, or assets you cannot access
Sale of real estate
A Will that is not properly signed, is handwritten or is a copy
Beneficiaries that are fighting among themselves, or with the Executor
A caveat was filed with the Surrogate, which will prevent probate of the Will
This guide is meant to be general infromation only. If you need specific legal advice, or have run into a problem, contact my office for a free consultation.