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The below article has 40 topics. We are posting topics 16-21 today. You can read the entire article on New Jersey Lawyers under Having a Will Prepared Does Not Have to Be Expensive!
16. What is a guardian?
If a person dies with minor children, and if he leaves no spouse, then a guardian may be appointed by the court for minor children. A guardian will basically safeguard the interests of the children, and ensure that their inheritance is not squandered by the adults. In order to sell or dispose of a minor’s interest in a parent’s land, a guardian must be appointed by the Probate Court to sign the deed for them. Any expense of having the guardian appointed, bond for the guardian, appraisals, court costs and attorney’s fees are charged to the minor, and deducted from his share of the estate.
In some cases, the guardian applies to the Probate Court for permission and approval to sell and/or to spend the children’s money for their support or education. The guardian must also account for income and disbursements ‑ by the court action if necessary.
17. What are the New Jersey probate requirements?
The requirements to admit a will into probate are very basic. There are three general requirements:
a. The decedent must be a resident of the specific County Surrogate, or if a nonresident, must have owned real property in New Jersey.
b. A certified death certificate must be provided to the surrogate.
c. The original will must be given to the County Surrogate.
d. The executor must fill out the probate application and pay the filing fees.
18. How is a will probated?
Upon the death of the testator or testatrix, the will is probated. This is the legal process which establishes the genuineness of the will. It is done by the County Surrogate or the Probate Court in the county where the testator or testatrix resides at the time of death. Many people have the erroneous conception that probate is a costly and lengthy procedure. In most cases this conception is untrue. New Jersey probate laws are basic and very “user friendly.”
About five years ago there was a major fad in the legal world. Many lawyers were advertising that living trusts were the “best thing since sliced bread.” Living trusts were advertised everywhere, on TV, in the newspaper, and at seminars. The bar basically outlawed lawyers from misrepresenting the benefits of living trusts to the public in their advertisements. Probate can be a very basic legal process. The component that can make the probate process expensive is when the heirs start to fight. If the heirs start to litigate during the probate process, then these costs can be very expensive.
The executor or the executrix is appointed by going to the Surrogate Court with the original will, and a certified death certificate. If the will is not self‑proven, at least one of the witnesses who signed the will must prove his or her signature on the will.
If the will, for any reason is not properly executed, then the County Surrogate can advise the executor as to the proper procedure in order to allow the will to be admitted to probate.
19. What are the guidelines for an executor/administrator?
If you have just probated a will and have been named Executor, or if you have qualified as Administrator for an estate with no will, then you may be asking yourself the question, “What do I do next?” Here are some basic guidelines to assist you.
a. A Notice of probate of the will must be served on all interested parties within sixty days of probate. The Notice of Probate of the will must advise them of the name and address of the Executor. A copy of the will should accompany this notice. If the will contains to any charitable bequests, then the notice must also be given to the Attorney General of the State of New Jersey, Division of Law, P.O. Box 112, Trenton, NJ 08625. After you send out the Notices of Probate of the will, then you are to file a proof of service by filing an affidavit that all parties were served by personal service, or regular and certified mail. The proof of service is filed with the County Surrogate.
b. The Executor/Administrator is responsible for determining and marshaling all assets of the estate. An estate checking account must be opened from which bills are paid. A bank will not open up an estate account unless a Federal ID number for the estate is obtained. You can call the IRS AT 800‑829‑1040 for an ID number. Moreover, an IRS form entitled SS4 must be completed to obtain a Federal ID number for the estate.
c. The Executor/Administrator is responsible for all debts, last illness expenses, inheritance and estate taxes, and administrative expenses from the decedent’s assets.
d. The Executor/Administrator is responsible for filing appropriate State and Federal tax forms as applicable, and forwarding any tax payments due.
e. The Executor/Administrator is entitled to a commission of 5% of the value of the gross estate (for estates up to $200,000.00) and 6% on income.
f. The Executor/Administrator may be required to prepare an accounting of the estate assets and disbursements and proposed distribution. There are two types of accountings. The first type is called an informal accounting, and it is used when the heirs are friendly and they don’t dispute the distribution plan or how the estate was handled. If the estate administration becomes adversarial, then another type of accounting must be prepared, and it is called a formal accounting. A formal accounting is usually prepared with the assistance of an accountant, and it is typically very expensive.
g. The Executor has the obligation to distribute the net estate in a timely manner, in accordance with the terms of the will. The Administrator distributes in accordance with the intestacy laws of the State of New Jersey.
h. Before any heir receives his share of the estate, he must execute a form called a Refunding Bond and Release. Basically, this form specifies that if any new bills become due for the decedent, then the heir will return any monies paid to the estate. Once the executor receives the executed Release and Refunding upon, then the Executor/Administrator will send a check to the heir for his share of the estate. The original refunding Bonds and Releases are filed with the County Surrogate. The filing fee is $5.00 per page.
i. The Executor/Administrator is required by New Jersey law to initiate a child support enforcement order for any beneficiary receiving in excess of $2,000, prior to distribution of any money to the beneficiary. The search shall be conducted by a private judgement search company that will verify results.
20. What types of property are not distributed under a will?
It is important to emphasize that all of a person’s property is not distributed under his will upon death. Some types of real estate ownership, 401K plans, life insurances, pay on death bank accounts, are assets that are often not part of the decedent’s probate estate. Therefore, these types of assets pass outside of the will and the estate.
Another way to transfer property is through joint ownership. Real Estate that is owned by both husband and wife automatically becomes the sole property of the survivor.
If two or more persons other than husband or wife own real estate together, each owns an undivided share as tenants in common, unless the deed states they are to own “as joint tenants and not as tenants in common.” Generally, real estate held in joint ownership goes to the survivor or survivors when one of the joint owners dies. An interest in real estate owned by tenants in common passes to the heirs of the deceased.
Personal property may be owned jointly with right of survivorship, the survivor becoming the sole owner. Checking accounts, saving accounts, or stocks and bonds may be held in joint ownership with right of survivorship, or as tenants in common.
Finally, it is important to note that 401K plans and life insurance polices pass outside of the will. Even if you specify in your will that an heir shall receive the proceeds from your 401K plan and your life insurance policy, this will not control how these assets are distributed. In a 401K plan, the beneficiary that you name will control who receives this asset upon your death. Moreover, a life insurance policy is a separate contract. The beneficiaries listed in the policy will receive the life insurance proceeds regardless what the will specifies.
21. What are some points to know when making a will?
a. You don’t need to make an itemized statement of your assets, nor do you need to state the disposition of your property item by item.
b. You can change it at any time you wish, as your assets, beneficiaries or desires change.
c. Your will is not recorded before death; no one need know of it if that is your wish.
d. The existence of the will does not affect your ability to sell or dispose of property. You may continue as though you had not written the document.
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