Probate Frequently Asked Questions

Augulis Law Firm LLC — Probate FAQ

Because probate is required of almost every estate, there is a high likelihood that you will find yourself directly involved in the probate of an estate at some point during the course of your lifetime. This might happen because you are named as the Executor/Personal Representative in a Will or because you volunteer to be the Administrator when someone dies intestate (without a Will). You might also find yourself a beneficiary, heir, or creditor of an estate that is being probated. Even if you manage to avoid involvement in the probate of someone else’s estate, a basic knowledge of the probate process remains important so that you can understand the role it will play in the creation of your own estate plan. With that in mind, the New Jersey probate attorneys at the Augulis Law Firm LLC have created several frequently asked questions and answers relating to the probate process that you may find beneficial. If you have specific questions relating to the probate of your own estate, or that of a loved one, feel free to contact out office to schedule a consultation.

1. What is probate? When a person dies, he or she leaves behind an estate that is made up of all assets owned by the decedent at the time of death. Ownership of those assets must eventually be transferred to the beneficiaries and/or heirs of the estate. Debts of the estate must also be paid. Probate is the legal process that ensures that all of that occurs in a timely and efficient manner.
2. Is probate always required? Some type of probate is almost always required; however, formal probate may not be necessary. Like most states, the State of New Jersey offers an alternative to formal probate for small estates without complex assets. Filing a small estate affidavit, in lieu of formal probate, may be possible if the decedent’s estate qualifies.
3. What is the difference between a “testate” and an “intestate” estate? If the decedent left behind a Last Will and Testament the estate is referred to as a “testate” estate. If the decedent failed to execute a Will prior to his/her death, the estate is known as an “intestate” estate. The primary difference between the two is found in how the estate assets are distributed. In a testate estate, the decedent’s Will determines how the estate’s probate assets are to be distributed. If the decedent dies intestate and is a resident of New Jersey, the New Jersey intestate succession laws dictate how the estate assets are distributed. Intestate succession laws, including those in New Jersey, usually require the estate assets to be distributed to close relatives only, such as a spouse or children if any survived the decedent and then parents and/or siblings if no spouse and/or children survived the decedent.
4. Are all assets part of the probate process?   Some assets bypass probate altogether, meaning they can be distributed to the intended beneficiaries shortly after the decedent’s death instead of having to wait until the end of the probate process. Examples of no-probate assets include:
   • Assets held in a trust
   • Certain types of jointly held property
   • Life insurance proceeds
   • Funds held in an account designated as “payable on death (POD)” or “transfer on death (TOD)”
   • Certain funds held in retirement or pension accounts
5. Who oversees the probate of an estate? If the decedent executed a Last Will and Testament prior to death, the person named as the Executor/Personal Representative of the Will is who will oversee the probate of the estate. If the decedent died intestate, or without a Will, any competent adult can volunteer to be the Administrator of the estate and oversee the probate process. If no one volunteers, the court will appoint someone, usually a local attorney, to be the Personal Representative (the generic name used to refer to an Executor or Administrator).
6. What are the steps involved in the probate process? Although every estate is unique, there are some common steps required during the probate of the average estate, including:

• Identifying, locating, and valuing all estate assets.
• Opening the probate of the estate by filing a petition, along with an official death certificate, in the appropriate court.
• Notifying creditors of the estate that probate is underway.
• Identifying, locating, and notifying beneficiaries and/or heirs of the estate that the estate is being probated.
• Reviewing and approving or denying creditor claims.
• Prioritizing and paying approved claims.
• Selling assets, if necessary, to pay creditors.
• Defending any challenges to the Will or litigating any claims made by creditors that were denied.
• Calculating any paying federal (and state, if applicable) gift and estate taxes
• Effectuating the legal transfer of the remaining assets to the named beneficiaries and/or legal heirs of the estate.

7. How long does the probate process take? The amount of time it takes an estate to get through the probate process depends on several factors, including the type of probate required, the size, value and complexity of the estate, and the skill and efficiency of the Executor/Administrator. As a general rule, the larger and more valuable the estate, the longer it takes to probate. In addition, if someone challenges the validity of the decedent’s Last Will and Testament, the ensuing Will contest will prolong the probate process as well.
8. Do you need an attorney to help during probate? There is no legal requirement that an Executor/Personal Representative hire an attorney to help during the probate process; however, most do retain the services of an experienced estate planning attorney because of the legal issues involved in probating an estate.

Contact Us

If you have additional questions about the probate of an estate in New Jersey, contact the experienced New Jersey probate attorneys at Augulis Law Firm, LLC by calling 908-222-8803 to schedule your appointment today.