When people pass away, they leave behind assets, property and possessions that can have sentimental and real value for surviving family members and loved ones.
Some assets transfer directly to heirs after a person’s death. These non-probate assets include payable-on-death bank accounts, insurance policies with designated beneficiaries, trust funds and jointly held assets with survivorship rights. Other assets must go through a process known as probate.
What Is Probate?
Probate is a legal process in which the court authenticates and approves the deceased person’s last will and testament and appoints an executor to carry out the administration of the estate. The administration of the estate includes, but is not limited to, marshalling the decedent’s probate assets, satisfying their debts and distributing their assets to beneficiaries.
Yet many people die without a will, which is referred to as dying intestate. Per a study by Caring.com, only a third of Americans have an estate plan. If there is no will, an administrator is appointed to administer the estate. New Jersey law dictates hierarchy of who may serve as administrator and that individual may be a spouse, child, relative or creditor of the decedent. If no interested heirs come forward to seek appointment as administrator within 40 days of the decedent’s death, any fit person may be appointed as administrator. The decedent’s heirs under New Jersey’s intestacy laws will be the beneficiaries of the estate.
Assets subject to administration by an executor or administrator include property, bank accounts, investments, and personal belongings which do not pass to a joint owner or name a beneficiary to receive the asset upon death.
For those who have not encountered estate administration in the past, the process can be an unfamiliar concept. Here are answers to three commonly asked questions about the probate process:
1. How Long Do You Have to File Probate After Death?
How long the estate representative or interested party has to open probate depends on the jurisdiction. Each state has its specific laws and regulations about the timeframe for initiating the process.
Some jurisdictions do not set a strict deadline. For instance, New Jersey has no time limit or statute of limitations on probating a will. Probate of a will cannot occur until the 11th day after the date of death, which allows time for the filing of a caveat, or objection, by heirs or beneficiaries in connection with the will or administration of the estate. Other jurisdictions have statutory time limits in place. California, for instance, allows individuals to open probate up to one year following a death.
Probate in New Jersey is a relatively simple and quick process. However, since the administration of the estate can take months to years depending on its complexity, it is best to initiate the process as soon as possible after the person’s death.
2. How Long Do You Have to Transfer Property After Death?
After a property owner’s death, the ownership of the property must transfer to another party.
In certain circumstances, a person’s house may not have to go through probate. If the property is owned as joint tenants or tenants by the entirety, the surviving owner retains ownership. Transfer on death deeds or transfer on death instruments and living trusts also allow individuals to pass property directly to beneficiaries outside of probate.
Property owned individually or as tenants in common becomes subject to probate. When the property is subject to probate, how long you have to transfer it depends on the rules and regulations of your jurisdiction. New Jersey law does not impose a deadline on when such property must be transferred. It will be distributed to the beneficiaries named in the will or, if there is none, the decedent’s heirs in accordance with New Jersey’s intestacy laws. In certain instances, the property has to be sold pursuant to a direction in a will or to satisfy debts.
The new property owner must obtain a new deed for the home from the county recorder’s office. When the property transfers outside of probate, it can be faster than when the property goes through probate. Receiving a new deed from the county recorder’s office can take approximately four to six weeks. Depending on the complexity of the estate, the probate process can take several months or several years.
3. How Does the Probate Process Conclude?
Once the administration of the estate is complete, the executor or administrator must circulate a release and refunding bond to each estate beneficiary. This is a legal document in which the beneficiary acknowledges receipt of a distribution, releases the executor or administrator from any claims in connection with the estate and agrees to refund or return a distribution to the estate if necessary.
Once the release and refunding bonds are executed, the estate can be fully distributed and closed and the executed release and refunding bonds are filed with the county Surrogate. However, in New Jersey, an executor or administrator must refrain from distributing any inheritance to a beneficiary if his or her distribution exceeds $2,000 and he or she is the subject of an outstanding child support judgment until the judgment is satisfied to the extend of the inheritance. The executor or administrator must perform a search to ascertain if such judgments exist.
Some beneficiaries may waive an accounting of the executor or administrator’s activities in administering the estate. Other beneficiaries may request an accounting before they execute a release and refunding bond. If a dispute ensues over the accounting, court intervention may be necessary.
Consult With an Attorney
Handling the administration of an estate after a loved one’s passing can be challenging. The attorneys at Mandelbaum Barrett PC are experienced in all aspects of this process and can help you with each step necessary to administer an estate.