……….a Will is “self-proving” if the testator and two witnesses sign the Will in front of a Notary Public or New Jersey attorney and the Will contains special language as provided by New Jersey Statute.
When a loved one passes, the process of Estate Administration begins. At the outset, it is necessary to determine whether the individual who passed, known as the decedent, executed a Last Will and Testament prior to his or her death. If the decedent had a Will, he or she should have named an Executor in the Will to manage the affairs of the Estate. After ten days of the decedent’s death, the Executor can “probate” the Will. The original Will, together with a certified copy of the decedent’s death certificate and the prerequisite filing fee must be filed in the Surrogate’s Court of the county in which the decedent resided at death. Note, however, that if the Will is not “self-proving” (a Will is “self-proving” if the testator and two witnesses sign the Will in front of a Notary Public or New Jersey attorney and the Will contains special language as provided by New Jersey Statute), one of the witnesses to the execution of the Will would be required to sign an affidavit verifying the authenticity of the Will. Also, if a bond is not waived in the Will, the Estate may be required to post a bond in an amount set by the Surrogate depending on the asset value of the Estate.
When the nominated Executor brings the above-mentioned documents to the Surrogate’s Court, the nominated Executor will be required to fill out a variety of forms attesting to his or her qualifications to serve as the Executor. After the submission of the forms, the Surrogate will issue Letters Testamentary acknowledging that the Will was admitted to probate and that the Executor has been appointed to act on behalf of the Estate. The Executor should obtain a number of copies of the Letters Testamentary which will be presented to the various financial institutions where the decedent maintains assets.
If the decedent died without having executed a Last Will and Testament, the decedent’s next of kin would apply to the court to become appointed as the Administrator of the decedent’s estate. The qualification process is similar to that of an Executor, except that the next of kin would only need to file the decedent’s death certificate at the Surrogate’s Court of the county in which the decedent resided at death. However, unlike most Executors appointed under a Will, in most cases, an Administrator is required to obtain a surety bond. Thereafter, the Surrogate will issue Letters of Administration (or a Short Certificate) to the Administrator.
Once the Judgment for probate is signed and Letters Testamentary or Letters of Administration have been issued, the Will is deemed “probated”. Thereafter, within sixty days from the date the Will was probated, the fiduciary must notify all beneficiaries and next of kin via certified mail with proof of delivery, that the Will has been probated and that a copy of the Will is available upon request (or if no Will, that Administration has been granted). This should generally be done by certified mail, return receipt requested. Any interested party to an Estate can initiate an action contesting the validity of the Will in one of two ways:
by filing a “caveat” (formal notice or warning given by a party to the court through the Surrogate’s office, of a party’s objection to court probating a Will) within ten days after the decedent’s death or prior to the presentation of the Will to probate; or
initiating a court action by the filing of a Verified Complaint within four months after the Will has been probated (for a New Jersey resident, or within six months for an individual residing outside New Jersey at the time of probate).
As the New Jersey courts have seen an increase in the Will contests, it is imperative for the draftsperson of the Will to carefully consider a client’s personal and financial information, evaluate a client’s mental capacity and carefully document the client’s wishes.
Managing the Estate
Following probate, the Executor/ Administrator may begin managing the affairs of the Estate. The Executor/ Administrator will be responsible for the following:
obtaining a Tax Identification Number from the IRS for the Estate and opening an Estate checking account;
collecting any and all assets in the decedent’s name including life insurance proceeds;
managing the Estate assets;
keeping records of bills, checks, statements, etc.;
paying any and all Estate debts and expenses;
preparing and filing the applicable tax returns including a final personal income tax return (Form 1040), a New Jersey Transfer Inheritance Tax Return (Form IT-R), New Jersey and Federal Estate Tax Returns (Forms IT-Estate and 706, respectively) and income tax returns for the Estate and any trust(s) established under the Will (Form 1041) (if applicable);
preparing either an informal or formal accounting (informal is more common, as opposed to formal which requires a filing cost and is only necessary if required by the fiduciary or a beneficiary);
drafting and asking the beneficiaries to execute refunding bonds and releases and waivers of Executor’s/ Administrator’s Formal accounting;
distributing the assets to the beneficiaries and filing the executed refunding bonds and releases with the Surrogate’s Court. Once all the refunding bonds and releases and waivers have been filed, the Estate can technically be closed.