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Probate FAQ

What Is The Purpose Of Having A Will?

Having a will ensures that your property is distributed in whatever manner you wish at the time of your death. There are simple wills that concern the straightforward distribution of the assets within your estate. However, wills can be more complex and used to establish trusts for various purposes. In a will, you can also appoint a guardian for your children and provide for stepchildren or others for whom you have an interest.

A will, however, does not govern nonprobate assets. Such assets can include real estate and IRAs or insurance policies with named beneficiaries. It is important to discuss with an experienced attorney the nonprobate assets you possess.

Will I Require The Services Of A Probate Attorney?

The probate process in New Jersey is complex. As every state has its own probate code, it is important to have the services of an experienced New Jersey probate attorney on your side and to have the necessary documents properly drafted. For example, if property is not properly described within the will, it is possible that distribution of assets will not occur as you would wish. A will may even be invalid if it does not comply with the formalities of New Jersey law. This can lead to costly court battles and result in assets of the will or trust being lost. An attorney who understands probate law can help ensure that your wishes are carried out precisely and at little cost to your heirs.

Will My Estate Be Required To Go Through Probate?

Sometimes there is a need to go to probate court to determine the intent of a will or trust. However, property placed within a trust is outside of the probate process. It is therefore important that trusts are properly drafted and prepared to ensure that assets are shielded from probate. Please keep in mind that this is a complex process. It is always best to consult with an experienced wills and trusts lawyer before setting up these instruments.

Who Will Take Charge Of Administering My Will Or Trust?

You have the right to name the executor of your will. This person will carry out your instructions, including probating of your will, sale or liquidation of assets when appropriate, and distribution of all estate assets to the proper heirs. The executor’s responsibilities may also involve litigation in cases where the intent of the will is not entirely clear. The executor is required to collect and safeguard estate assets. That individual must also pay estate debts as well as any taxes owed. He or she must also provide an accounting regarding administration of the estate. The executor must also notify next of kin and beneficiaries within 60 days of the probate.

Likewise, you can name a trustee to administer the trust. However, a trustee may stay in this role for a much longer time until the assets of the trust are completely distributed. Depending upon how the trust is set up, the trustee may have discretion regarding when and how to make distributions.

Both executors and trustees play an extremely important role when it comes to distribution of your estate. This includes correct distribution of assets according to the instructions of the will or trust, negotiation with creditors regarding the payment of debts, the filing of estate tax returns and making certain any investments are wisely cared for.

What Documents Will I Need To Have Available When Probating The Will?

  • You will need to have the original signed will.
  • Courts will ask for a death certificate containing a seal.
  • Have available the addresses of the next of kin and all individuals named in the will.
  • You must have a means for covering the probate fees.

What Will Be Required If No Will Is Located?

New Jersey law has a process to follow ensuring that the estate is administered properly when there is no will. A close relative or kin can apply for the position of administrator of the estate. The spouse usually has the right to first apply for this position. However, the court has discretion to appoint the individual it considers most suited for the task in accordance with New Jersey statutes. Especially under these sorts of circumstances, it is always a good idea to speak with legal counsel to make certain all formalities for administration of the estate are met and that the correct appointment is made.

Contact Our Law Firm To Find Out More About Probate Law

Contact Wolfenson & Ashkenazi, P.C., to learn about probate-related matters. Contact our law firm by calling 908-686-7230 for a free initial consultation. We have offices in Union and Cedar Knolls.

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