Probate is the process of administering the last will and testament of a decedent.  A will is not valid until it is admitted to probate by the local Surrogate.  In New Jersey, unlike many other states, the process is not overly complicated, time consuming, or expensive.  Initially, the probate process is focused on validating the decedent’s will.  For example, the probate of a will of a person who resided in East Brunswick would take place before the Middlesex County Surrogate.  

The Surrogate will review the purported will submitted by the family and either admit that will to probate or reject it for various reasons.  If rejected, the probate process becomes more complicated and may require court action.  If accepted, the Surrogate will issue a document to the named executor known as Letters Testamentary.  This legal document is what gives the executor his or her authority under the will.

The process begins by filing the decedent’s Last Will and Testament and Death Certificate with the local Surrogate. If the Will is accepted and if there are no objections or caveats filed against the probate of the will, the Surrogate opens the estate by appointing the estate’s Personal Representative (i.e. Executor). If the decedent does not have a Will, then the decedent’s next of kin can petition the Surrogate to open the estate through the appointment of an administrator.

The initial phase of probating the will takes about 2 weeks from date of death. Numerous factors can affect how long it takes for the Surrogate to act. Once the estate is open, the executor begins to administer the estate in accordance with local law and the decedent’s will. One initial task is to inventory the estate’s assets and debts, communicate with the beneficiaries, and plan a course of action.

Some estates can be closed relatively quickly, and others can take years to close. Creditors have 9 months to present valid claims against the estate. If the executor were to distribute the assets before determining all the debts, the executor could become personally liable for those debts. Other factors that affect duration can include the necessity of filing various tax returns, the preparation of an accounting, the running of a family business, and the willingness of all beneficiaries to cooperate.

Before doing anything, you should speak to an attorney. Just because you have been named as Executor does not mean you need to or should accept that responsibility. You need to first understand what’s involved given the information you have available. Executors are fiduciaries and are legally responsible for their actions. Executors can be sued for the actions they take that are improper under the law.

The Executor must marshal and protect the assets of the estate, inventory the assets and debts, and make periodic reports to all interested parties. The Executor must pay all debts of the decedent, to the extent possible, file any required tax returns, pay all taxes that may be owed, and eventually distribute the assets in accordance with the decedent’s Will. In many instances, the Executor will also have to account, either formally or informally, to the estate’s beneficiaries detailing all financial decisions that have been made.

Not really. Since these assets get paid without respect to the provisions of a decedent’s Will, the Executor generally has no control or say in how these assets are paid. These assets pass outside of probate. However, it is important to remember that these assets may still comprise part of the decedent’s taxable estate, for tax purposes, and taxes must be collected and paid by the Executor. Executors often face challenges in administering an estate with both probate and non-probate assets in the absence of a clearly articulated estate plan.

Yes. The law explicitly provides that Executors are entitled to compensation. Under New Jersey law this compensation is fixed by statute. For example, a $1,000,000 estate will generate a commission of $38,000 for the Executor.

Generally speaking, probate ends after all assets have been accounted for, all debts and taxes paid, and all beneficiaries have received their share of the estate. Sometimes a court action is necessary to close an estate and sometimes an estate can be closed informally by agreement of all interested parties.