I often receive calls from people who have just lost a loved one and want to know what to do. Often, these calls occur within two days of the event, and the callers are either “shell-shocked” or, understandably, upset. They are very worried about how to pay bills, probating the Last Will, and moving/closing bank and other accounts. Many have outdated information about the process and this adds to the turmoil they feel.
FIRST THINGS FIRST
First and foremost, take care of your family and yourself. There is nothing to do immediately except this important task. Do not get so engrossed in post funeral concerns that you fail to take care of the family. Last Wills cannot be probated until ten days after the date of death, by New Jersey law. Use this time wisely.
At this early stage, people come out of the woodwork to tell you what you should be doing: transferring accounts, closing accounts, and warn about money escheating to the State, and the like. Ignore these people. In fact, if your loved one had a detailed estate plan, moving accounts and money may nullify it. You certainly will make things more complicated for yourself later. See a lawyer first.
AFTER THE FUNERAL
After the funeral, and when you feel up to it, see an attorney. Even if you plan on handling the estate yourself, it is wise to spend an hour with a probate attorney to get his or her advice before you go off on your own. There’s an old saying, “You don’t know what you don’t know.” This is New Jersey; there are many laws and tax regulations. Don’t get fouled up
IF THE WILL IS IN ORDER
If your loved one’s Last Will and Testament was written and meets the statutory requirements, it can be probated by the County Surrogate, in the county where the deceased resided. The Surrogate’s Offices are usually located in the county courthouse, and you will find the personnel to be extremely helpful and pleasant. Some counties require you to have an appointment, others do not. It is best to call and make an appointment. The Executor must bring the original Last Will, original death certificate, and a check to pay the filing fees. The fees are usually under $200.00. If the Executor advances the fees, he or she can get reimbursed from the estate. The meeting with the Surrogate is usually about twenty minutes.
IF THE WILL IS NOT IN ORDER
If the Last Will does not meet the statutory requirements for probate, such as not being signed by the deceased, not signed by two witnesses, someone has crossed things out and written on the document, etc., it must still be brought to the Surrogate, but a court proceeding will have to be scheduled. Only a judge can admit such documents to probate. This problem often happens when people prepare Last Wills from the internet or other non-lawyer source. It is a costly mistake.
IF THERE IS NO WILL
If there is no Last Will, a family member will have to step forward to be appointed as administrator of the estate. This is much like an Executor, but a bond will have to be posted for the value of the estate. You should have the value of the estate with you when you visit the Surrogate’s Office, along with a death certificate and a check, to be named administrator. Depending on whether you are a spouse, a child or a friend, others may have priority to be administrator over you. If so, these other people will have to sign “renunciations”.
Once you have received a certificate from the Surrogate stating that you are the Executor or administrator, you may begin the process of collecting the estate assets.
Of most importance is to obtain the date of death value of all assets, in writing, from the bank or other institution. You will need this information for a tax return. Even if no tax is due, you, as a fiduciary, want to have this information to prove no tax is due. There are two types of death taxes: Inheritance Tax and Estate Tax (Federal and New Jersey). You must also file the final income tax returns. An accountant can help with this.
Other issues may present themselves such as, Insolvency (not enough money to pay the bills), Trusts called to be created in the Last Will, such as Child, Special Needs, Credit Shelter and other Trusts, the sale of real estate, debts owed by family members; the need to distribute money to some or all beneficiaries before the estate is closed, as well as other circumstances. These should be addressed by your legal advisor before proceeding.
Remember, as an Executor or an administrator, you are a fiduciary. You are responsible to act carefully and responsibly with estate assets which are for the benefit of the beneficiaries. Keep good records so that you can make an easily understandable accounting when closing out the estate.
© Law Offices of Robert J. Shanahan, Jr., LLC 2014
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services.