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.