How to Probate a Will

Often I am posed with the question, “What Happens when a person dies? What is the process regarding their estate?”

We are all familiar with the scene in the movies where after a person’s death, family and friends solemnly gather in the lawyer’s office. The will is then read out loud by the lawyer creating suspense, anxiousness and sometimes discontent.

The scene, however, is far from reality and just movie theatrics. In realty, there is no legal requirement for an official reading of the Will after a person’s death. Usually, the lawyers or personal representative will just mail copies of the will to the heirs.

Once a person dies, a Will may be probated. Probate is the process where a Will is proved to be valid by a Surrogate, the authority to determine the authenticity of such a document. It also involves appointing an individual for an Estate when someone dies without a Will.

Probate is performed when a person dies with assets in their name alone. The personal representative, officially known as the Executor/rix, would come to the office of the Surrogate with the original Will and a certified copy of the death certificate.

Application is made to the Surrogate of the County where the decedent resided at the time of death. If the Will is self- proving (language added to the will that allows the document to prove itself), no further proof or testimony will be necessary to probate the Will.

If the Will is not self-proving, a proof of one of the witnesses is necessary to complete the probate. The personal representative would fill out certain qualification forms. Although the Surrogate may begin the process, the probate can be completed until the day following the tenth day after death. There are fees to probate a Will, set forth by the New Jersey legislature, but usually not more than $200.00.

If someone dies without a Will, an individual can make application to be appointed as Administrator/rix to represent the Estate. After signing qualification papers, the Administrator/rix would need to post a bond that represents the full value of the Estate and file renunciations from any individual that has a prior or equal right to be appointed.

The Surrogate, as part of the process, will issue letters and certificates to support the appointment of the individual to the Estate, which will allow them to access and transfer assets such as bank accounts, stocks, bonds, and other financial documents.

Once the probate is complete, the personal representative of the Estate has sixty days in which to notify the heirs at law, next of kin and beneficiaries that application was made for probate.
The Executor/trix is required to pay the debts of the decedent and any taxes due, to perform a Child Support Judgment search on each beneficiary, to make distribution to the beneficiaries, and if required, to provide an accounting of his/her administration of the estate. An informal accounting may be requested by only the next-of-kin given on the Application for Probate or beneficiaries named under the Will and should not be requested until one year from date of probate. If the executor/trix refuses to comply with the request, an action may be brought in the Superior Court Probate Part for a formal accounting.Finally, the Executor/trix is required to file a New Jersey inheritance tax returns. The returns must be filed and the tax paid within eight months after the date of death to avoid interest. While an extension to file may be granted, the tax must still be paid initially.

Irreconcilable differences

What do Hillary Swank and Kevin Federline, Pamela Anderson and Kid Rock, Paul McCartney and Heather Mills have in common? If you said they are all divorced, that is half right. They decided to split up based upon “irreconcilable differences.” That reason for divorce was not allowed in New Jersey until recently.

On January 20, 2007, Governor Corzine signed into law a new cause of action for divorce known as “irreconcilable differences”. Previously, most divorce complaints were based on fault, such as adultery or extreme cruelty where a person had to articulate specific grounds of cruel behavior.

There was only one no-fault cause, separation where the spouse must have been living separate and apart for at least 18 months. Now, an additional new no-fault cause of action, “irreconcilable differences” has been added.The new law means that a Complaint for Divorce based on irreconcilable differences must state:

a.) You and your spouse must have experienced irreconcilable differences for six months.
b.) You or your spouse must have lived in New Jersey for 12 consecutive months before the filing of the divorce complaint.
c.) The irreconcilable differences make it appear that the marriage should be dissolved.
d.) There is no reasonable prospect of reconciliation.

This new law has no separation requirement, meaning that two people can file for divorce under this cause of action if they still live together. This ground for divorce may be appropriate to allege in certain situations such as when two people have simply grown apart and wish to end their marriage, but still wish to reside together until the divorce is finalized. As a result, a sense of civility and practicality is introduced to diovrce law in New Jersey by eliminating the need for spouses to state specific acts of wrongdoing in the divorce papers which usually lead to more caustic situations.

Navigating the Immigration World

Very often, the topic of immigration is raised. Here is one of the most popular questions posed: “Do you Have to be a U.S. citizen to file a petition for parents?”

Answer: Yes, you must be a U.S. citizen to file a family petition for your parents.

Unfortunately, the relatives you can petition differ depending on whether you are a U.S. citizen or a green card holder. U.S. citizens can file petitions for more types of relatives than green card holders can. In addition, some relatives of U.S. citizens do not have to wait for priority dates before their applications can be processed. In most cases, a U.S. citizen will be able to petition a relative more quickly than a green card holder can. However, there is one notable exception for Filipinos, which I will discuss later.

The most important petitioning benefit for U.S. citizens is the ability to get green cards for “immediate relatives” without being subject to priority dates or visa quotas. Immediate relative petitions are processed right away and are not subject to the lengthy waits of the priority date system. “Immediate relatives” of a U.S. citizen include the citizen’s parents (if the citizen is at least 21 years old), spouse, and unmarried children under 21 years old.There is a downside to immediate relative petitions, however. A U.S. citizen can only file an immediate relative petition for the relative and not the relative’s spouse or unmarried minor children. In most immigration petitions, the spouse and minor children of the relative being petitioned are included in the petition. They are known as “derivatives” under the immigration laws. Immediate relative petitions, however, do not include derivates.

For example, if a 21-year-old U.S. citizen files petitions for both of his parents, the parents will not be allowed to bring their 18-year-old daughter (the petitioner’s sister) with them. The daughter must be petitioned separately, either by the parents once they receive their green cards, or by the citizen in a separate petition (which is subject to a current priority date that is over 22 years ago).U.S. citizens can petition other relatives, but they are not processed immediately. Petitions can also be filed for children over 21, both married and single, and for siblings, but these petitions are subject to the quota system for green cards.

These relatives must wait until their priority date becomes current before he or she can get a green card. However, these relatives are allowed to bring their derivative family members. For example, if a U.S. citizen files for his married son in the Philippines, the son’s wife and unmarried minor kids will get green cards at the same time when the son’s priority date becomes current.Green card holders have more limited petition options. They can only file petitions for spouses and unmarried children. Both of these types of relatives are subject to the quota system, and they must wait for a current priority date before immigrating.

There is no “immediate relative” classification for green card holders. However, there is one benefit to being a Filipino green card holder over a U.S. citizen: it is actually faster for green card holders to petition an unmarried child over 21. The current priority date for single adult Filipino children petitioned by green card holders is in 1996, while the same category of children petitioned by U.S. citizens is in 1992. Visas should be available faster for single children of green card holders than for single children of U.S. citizens.

What happens if a green card holder petitions an unmarried adult child but then becomes a U.S. citizen? Your child can request to retain the status of a child of a green card holder by writing the U.S. Citizenship and Immigration Services office in Manila. Understanding the complexities of family petitions can be difficult. It is always advised to consult an experienced attorney to assist you in bringing your relatives to the United States.