My Loved One Left a Will. Now what? FAQ's on the Probate Process
Estate Administration and Probate Attorneys
Probate administration is a legal process that may include gathering a decedent’s property, paying their final debts and taxes, and distributing their net estate according to the terms of the decedent’s Last Will and Testament. At Goldstein Law Group, our experienced estate, probate, and administration lawyers can help administer an estate or resolve contested estate issues. The process of probating a will and administering an estate after a family member dies can be a complicated and time-consuming. The guidance of an experienced estate, probate and administration attorney is often critical in these sensitive matters.
How do you become the Executor?
The Testator’s Will identifies the person that they wish to serve as their Executor. This is the person who will have the legal authority to gather the decedent’s assets and settle their estate. An Executor is very much like a Power of Attorney in that respect. One major difference is that the Power of Attorney expires on the death of the principal, which is when the Executor takes over under the Last Will and Testament. Many people often appoint the same person as their agent under a Power of Attorney to also serve as their Executor under their Will, but it is not required.
What are the steps involved in the Probate process?
The first step in the Probate Process is to locate the original Will and identify the Executor named in the Will. The Executor brings the original Will to the County Surrogate in which the decedent resided, to be recorded in their “probate” records, and to secure formal appointment as the Executor.
The Executor must complete an application containing personal information including:
1) the applicant’s residence.
2) name, address, and date of death of decedent.
3) identity of spouses and next-of-kin.
4) The application is signed and sworn to, under oath.
5) The affidavit must be accompanied with an original death certificate.
6) The application is filed and recorded by the County Surrogate.
After payment of the appropriate filing fee, the County Surrogate will issue Letters Testamentary and an Executor’s Short Certificate no sooner than ten (10) days after the decedent died. You can still apply for probate before the tenth day however, the Letters Testamentary will not be issued before then. These are the legal documents which the Executor will show to banks, insurance companies, and others to prove their legal standing to administer the Estate.
What if the Executor does not wish to serve, has passed away, or is otherwise unavailable?
A properly prepared Will would typically designate an alternate Executor if the first named Executor is unable or unwilling to serve for any reason. The alternate Executor will need to obtain a renunciation from the first named Executor if he or she is still alive or provide proof to the County Surrogate that the first named Executor is unavailable – for example, a death certificate or obituary.
The same holds true for an Executor who has been appointed and thereafter wishes to resign the post. An Estate administration can be a lengthy process for several reasons. There may be difficulties gathering the assets, there may be lawsuits among the heirs, or the Will may have unique provisions. An Executor may also decide to resign for personal reasons and may do so by filing a resignation with the County Surrogate. The alternate Executor can then qualify as the Substitute Executor and will have all of the powers and duties as though they were the initial Executor.
What if the I believe the Will was forged, obtained by fraud, duress or the product of coercion?
There are many different reasons why a purported Will may be invalid. For this reason, the laws of the State of New Jersey provide that the Will cannot be probated, and the Executor cannot be appointed, until ten days have passed since the death occurred.
During those ten days, any heir or next-of-kin (spouse, child, etc.) or other interested party can file a Caveat with the County Surrogate. The Caveat will block the Executor’s appointment. If the Caveat cannot be resolved between the person who filed it and the Executor, then a lawsuit must be filed in the Superior Court before anyone will be appointed Executor. The judge will hear evidence and decide if the Will is valid or void.
If the Will is valid, it will be admitted to probate and the Executor appointed. If the Will is void, a prior or subsequent purported Will may be offered for probate, or the estate may be administered according to the laws of intestacy.
Will I have to post a surety bond?
A surety bond is a form of insurance that is required by law to protect the creditors and heirs from mismanagement of the estate or wrongful transfers by the Executor. Most Wills, especially which designate a close family member, spouse, or child to serve as the Executor, where there is no issue or concern by the testator as to the fidelity of the person designated, will include a provision in their will which expressly waives this requirement, and the Executor will not ordinarily be required to post a bond.
Consult an experienced Estate and Probate Administration Lawyer at Goldstein Law Group to Further Your Interests
It can be expensive and time-consuming to wait for an estate to settle. For many people, it is important to avoid probate and plan for the distribution of your estate with a Will or trust. At Goldstein Law Group, our experienced estate administration and probate attorneys are ready to assist you with the complexities of these matters. Our offices are conveniently located in Brielle, in Monmouth County, on the border of Ocean County, and in Old Bridge Township, in Middlesex County. Many of our clients come from communities throughout the entire state of New Jersey and include such municipalities as Rumson, Red Bank, Fair Haven, Middletown, Manalapan, Marlboro, Little Silver, Spring Lake, Wall Township, Brick, Farmingdale, Edison, Metuchen, Highland Park, Howell Township, Point Pleasant, East Brunswick, South Brunswick, Princeton, Lawrenceville, Ewing, Flemington, as well as municipalities in Bergen County, Hudson County, and Essex County. Please contact us at 732-967-6777 or via our online form for a free phone or video consultation. We also can assist people who need a family law attorney or representation in a criminal defense, real estate, civil litigation, or business law matter.