Figuring out how to move forward when you lose a loved one is hard enough without having to manage their final affairs.
Even when your loved one passes peacefully, with all their affairs in order, probate can be among the most straining parts of administering their estate.
When there is no will or there are questions about the will’s validity, the process can become even more complicated.
Thankfully, you do not have to go it alone. With an experienced probate lawyer like those at Weiner Law by your side, you can focus on the important things as you grieve your loss.
Our compassionate, experienced probate lawyers can guide you through the process, providing our insights about the law to help you get through this difficult time. Contact us today to get started.
What Is Probate in New Jersey?
Probate is the process through which the property of a deceased person, legally referred to as a “decedent,” is used to satisfy debts and then distributed.
Technically, probate is the specific term for the process of determining the validity of a will. In contrast, the process of satisfying debts and distributing property for a decedent without a will is called administering the estate. Many use the terms interchangeably in casual conversation.
Probate, then, is the process through which you determine whether a will is valid before distributing assets per the will.
Estate administration refers to the same process but, for obvious reasons, does not include a will validity determination. Probate attorneys handle both legal processes.
Notably, not all assets pass through probate. A person’s property is made up of probate and non-probate assets. Non-probate assets typically include trusts, life insurance, and retirement accounts.
On the other hand, probate assets include assets held in the name of the decedent alone like real estate, bank accounts, and personal property.
What Happens When Someone Dies Without a Will?
When a person dies without a will, their estate must go through estate administration, where the court determines who should get the decedent’s assets.
Those assets are distributed according to your state’s laws of intestate succession. For example, the estate of a person dying without a will in New Jersey would be distributed as follows.
Appointing an Administrator
To begin, the court must appoint an administrator to handle the estate. By law, if the decedent is survived by a spouse or domestic partner, the court appoints that person unless they turn the appointment down.
If the decedent had no surviving spouse or domestic partner, the court may appoint one or more of the decedent’s heirs. If no heir is willing to serve as administrator, the court may appoint anyone willing to be the administrator.
Once appointed, the administrator is responsible for providing, to the best of their ability, a list of the decedent’s debts and assets. The administrator must also notify all potential heirs of the estate administration.
If the court is satisfied with the list of debts and assets and notification of the heirs, the administrator must use the estate funds to cover outstanding debts. Then, the administrator distributes the assets as directed by law.
Intestate Succession with Surviving Spouse or Domestic Partner
Under the law, the estate passes entirely to a surviving spouse or domestic partner if the decedent has no surviving descendants or:
- The decedent’s only surviving descendants were shared with their partner;
- The decedent’s partner’s only surviving descendants were shared with the decedent; and
- The decedent does not have surviving parents.
If the decedent has a surviving spouse and a surviving parent but no descendants, the spouse is entitled to:
- The first 25% of the estate, at least $50,000 but not more than $200,000, and
- Three-fourths of any remaining balance beyond the 25% value.
The surviving parent receives the remaining one-fourth of the balance.
If the decedent has a surviving spouse and surviving descendants, but either spouse has descendants the other does not share, the spouse is entitled to take:
- The first 25% of the estate, at least $50,000 but not more than $200,000, and
- One-half of any remaining balance beyond the 25% value.
The descendants take the remainder of the one-half.
Intestate Succession with No Surviving Spouse or Domestic Partner
When the decedent is not survived by a spouse or domestic partner, the law prioritizes who should get the decedent’s property.
If no relative survives to take under a particular level, you move to the next level down. Priority goes as follows, to the decedent’s surviving:
- Descendants (children, grandchildren, etc.),
- Siblings (including nieces and nephews),
- Grandparents’ children (aunts and uncles),
- Grandparents’ descendants (first cousins and first cousins’ children), and
- Stepchildren and their descendants.
If no member of any of these generations survives, the estate passes to the state of New Jersey.
What Happens When Someone Dies with a Will?
Generally, the steps are quite similar when someone dies with a will, with the added step of determining the will’s validity. Wills often designate an executor, who serves in the same role as the administrator.
If the will does not name an executor or that person is unwilling or unable to fill the role, the court must appoint someone. Typically, that person will be a beneficiary under the will.
The executor or administrator must bring the will to the court to begin the probate process. Then, they must also notify all potential beneficiaries and potential heirs that the will is being probated.
If any beneficiaries or heirs have a reason to contest the will’s validity, they can raise it with the court. Common reasons to contest a will include:
- Improper will execution—the decedent did not create the will properly;
- Lack of testamentary capacity—the decedent lacked the ability to understand the nature of making a will at the time they made it; or
- Undue influence—someone coerced or tricked the decedent into making the will.
After the court declares the will valid, the executor or administrator must provide the court with an inventory of the decedent’s assets.
Estate property goes first to satisfying any debts, and then the executor or administrator may distribute the assets to the beneficiaries named under the will.
When Do I Need a Probate Attorney?
Although you are not required to have a probate attorney, we encourage anyone managing a loved one’s estate to consult a lawyer.
Even estates that seem simple at a glance can end up complicated if someone unexpectedly challenges a will, or you cannot locate someone entitled to take under intestate succession.
Probate is a legally exacting process, so the value probate lawyers bring cannot be overstated. You do not want to get years down the road and realize an investment property is still under the decedent’s name, leaving you unsure how to get the payments you are entitled to.
You may understand all that, but you still want more information before moving forward. Namely, how much does a probate attorney cost? Unfortunately, we can only tell you that it depends. How much you will pay depends on factors like:
- How the attorney’s fees are structured,
- How complicated the estate is,
- The likelihood someone will contest any part of the process, and
- How organized the decedent was.
Ultimately, the best way to get an estimate is to speak to an attorney.
How Can Weiner Law Help?
On the best of days, managing probate without being familiar with the process would be highly stressful. Losing a loved one can make that process feel overwhelming.
Having a probate lawyer to provide support and ensure you can take care of yourself and your loved ones can make all the difference.
At Weiner Law, we are committed to building a relationship with you to be better informed and equipped to help you achieve your goals.
Our experienced, compassionate probate attorneys can help with whatever probate matter you need, from administering an intestate estate to contesting a will in open court. Contact us today to learn more.