New Jersey Estate Planning FAQ
(The following information applies in the state of New Jersey only.)
What is a surrogate?
In the State of new Jersey, the person who determines the validity of wills in undisputed matters and appoints personal representatives to administer estates is called the Surrogate. Each county has a Surrogate’s Court and the Surrogate is the Judge at that court. The Surrogate is a constitutional official elected for a five-year term and considered part of the judicial system.
Besides being responsible for probating wills, the Surrogate supervises certain minors’ funds, serves as the deputy clerk of the Superior Court of New Jersey for adoptions and all probate matters, appoints guardians for minors, and supervises and prepares files for adoptions, incompetency hearings and all contested and uncontested probate matters.
What is a will?
A will is a legally enforceable written document that takes effect upon death, and directs the distribution of a person’s personal property and real estate.
Why is a will named “last will and testament”?
This expression is historical and comes from the time a distinction was drawn between a “Testament” a term that referred to the disposition of personal property, and “will” a term that referred to the disposition of real property. Today the words “and Testament” are no longer necessary since a Will now relates to both real and personal property.
The witnesses do not have to read it or know its contents. However they must either see the Testator sign the Will or be told by the Testator that it is his Will and asked to sign as witnesses. The witnesses should be likely to outlive the Testator and remain in the community.
What information will my attorney need in order to prepare my Will?
You should list all your real estate property (land and buildings), all your personal property (bank accounts, stocks, bonds, furniture, automobiles, money life insurance, jewelry, and other personal effects that your wish to distribute in your Will.
You should also list what you owe so that you can show exactly where you stand financially.
List relatives and others who will be names in your will and their relationship to you.
Select your bequest to them, when it is to be given and how it is to be provided (through a trust fund, life insurance, etc.)
Choose and Executor or Executrix and Alternate Executor or Executrix or Personal Representative to administer your estate. Secure their consent to serve in this capacity.
If you have minor children, select a Guardian and Alternate Guardian for your minor children in case you die before they become adults. Secure their consent to serve in this capacity.
Consider establishing trusts under your Will to ensure the proper management of any assets left to children or persons incapable of managing their financial affairs.
Where should I keep my Will?
Your Will can be kept in the fire proof files of your attorney or in a safe deposit box. You should tell your executor where your Will is kept to facilitate probate. Your executor can remove your Will from a safe deposit box in the presence of a bank employee when it is needed after your death or they can simply call the attorney if he or she has the executed Will.
What if my Will is not properly executed?
The Surrogate does not have authority to probate a Will which is contested or contains any doubt or difficulty on its face. In such a case, the Surrogate will inform the nominated Executor, Executrix or Personal Representative that it will be necessary to apply to the Superior Court of New Jersey to seek a judgment to allow the Will to be admitted to probate. This procedure normally involves a formal hearing before a Judge of the Superior Court. If it is ultimately determined that the Will was not executed in accordance with the statutory requirements for a valid Will, the Will may be denied probate.
What should I do about updating or changing my Will?
Periodically, you should review and update your Will to reflect changes in your life, such as marriages, birth of a child, death, changes of your financial status or revisions of estate laws. Do not try to change your will by drawing lines through items, erasing, writing over or adding notations. This can destroy it as a legal document and may not be effective to change it. If you are making substantial changes, it is best to have a new Will drawn. Should your changes be minor, you might prefer Codicil.
What is a Codicil?
A Codicil is a separate document used to make minor changes in a Will. It must be signed and witnessed with the same formality as the Will itself. It is not necessary to have the same witnesses on the Codicil and the original Will. The same requirements as to witnesses that apply to a Will apply to a Codicil. Just like a Will, a Codicil should also be made self-proving.
How can I avoid court fights over my Will?
The best way to avoid court fights is to have your Will drawn by a lawyer who focuses exclusively on drafting Wills. If you feel that anyone will challenge your Will or argue that you were not of sound mind when it was executed, you may safeguard yourself by arranging to have a physician examine you, witness your Will and be prepared to attest to your soundness of mind should the need arise. You may wish to discuss further safeguards with your attorney.
Does a divorce revoke the entire Will?
A divorce operates as a revocation of any bequests made to your former spouse or any appointment of your former spouse as executor, but in all other respects the Will is still effective.
What other facts should I consider?
Changes in the law may affect the distribution of your assets, no matter what your Will may say.
1. Omitted Spouse: If a spouse is not mentioned in a Will, and if the Will was signed before the marriage, it will be presumed that the surviving spouse is entitled to an intestate share.
2. Elective Share: A surviving spouse has the right to choose to take either his or her inheritance under the Will, or one third of his her spouse’s “augmented” estate. To do so, he or she must file an Elective Share claim with the Surrogate’s office within 180 days of appointment of the Executor. The elective share law is very technical and you will need the assistance of an attorney to make or defend such a claim.
3. Marital Agreements: If both you and your spouse do not want the Elective Share or the Omitted Spouse laws to apply to your will, you can both sign a marital agreement exempting your estate.
What is meant by a written statement of list to dispose of tangible personal property?
In order to avoid redrafting a Will due to a minor change, a Will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the Will, other than money, evidences of indebtedness, documents of title, and securities and property used in trade of business. To be admissible, the writing must be either in the handwriting of the testator or be signed by him and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of testator’s death; it may be prepared before or after the execution of the Will; it may be altered by the testator after its preparation; and it may be a writing which has no significance apart from its effect upon the disposition made by the Will.
What are taxable assets?
All jointly held personal and real property is generally not included in the “probate” estate. The “probate” estate consists of those assets which pass by Will or the intestate law where there is no Will. But all property, whether jointly or individually held, is taxable provided that it is not categorically exempted.
How about New Jersey Inheritance tax?
Inheritance tax is tax payable by an heir or beneficiary for the right to acquire the property of a deceased person or to receive a gift in anticipation of death. The tax is determined by the amount inherited and by the relationship of the individual to the deceased.
What are the Inheritance Tax rates in New Jersey?
Currently, the law imposes a graduated inheritance or succession tax ranging from 11% to 16% on the real or personal property with a value of $500.00 or more to certain beneficiaries.
Who is exempt from Inheritance taxes? (beneficiary classes and tax rates)
Effective January 1, 1985, there is no tax imposed for transfer to a husband or wife.
Inheritance tax law recognizes five beneficiary classes ranging from “A” to “E” as follows:
Class “A” – effective July 1, 1988, no taxes will be imposed on the following: father, mother, wife, husband, grandparents, child or children of decedent, adopted child or children of decedent, issue of any child or legally adopted child of decedent, mutually acknowledged child or stepchild.
Class “B” – Deleted by amendment 7/1/63
Class “C” – Brother or sister of decedent, wife or widow of a son of decedent, or husband or widower of a daughter of decedent
First $25,000 No Tax
Next $1,075,000 @ 11%
Next $300,000 @ 13%
Next $300,000 @ 14%
Next $1,700,000 @ 16%
Class “D” – Every other transferee, distributee or beneficiary not herein classified.
First $700,000 @ 15%
Over $700,000 @ 16%
Class “E” – Transfers to the State of New Jersey or any of its political subdivisions for public or charitable purposes, and educational institution, church, hospital, orphan asylum, public library and certain other nonprofit agencies, etc.
Rate: Totally exempt
For rates applicable to estates of decedents who died prior to July 1, 1988, contact the Transfer Inheritance and Estate Tax office in Trenton at (609) 292-5033 / 5035 / 7147.
How soon must Inheritance taxes be paid?
State Inheritance Tax returns must be filed and the tax paid on the transfer of real or personal property within (8) months after the decedent’s death on either:
-A resident decedent for the transfer of real or tangible personal property located in New Jersey or intangible personal property wherever situated, or
-A nonresident decedent for the transfer of real or tangible personal property located in New Jersey. No tax is imposed on nonresident decedents for intangible personal property wherever located.
A return must be filed whenever any tax is due or when benefits are passing to other then Class “A” beneficiaries.
Are there other exemptions?
In addition to the exemptions listed under “Beneficiary Classes and Tax Rates,” no tax is imposed on:
-Transfers having an aggregate value of less than $500;
-Life insurance proceeds paid to a named beneficiary;
-Charitable transfers for the use of any education institution, church, hospital, orphan asylum, public library, etc.;
-Transfer for public purposes made to New Jersey or any political subdivision of the State;
-Payments from the New Jersey Public Employees’ Retirement System, the New Jersey Teachers’ Pension and Annuity Fund and the New Jersey Police and Firemen’s Retirement System.;
-Federal Civil Service Retirement benefits payable to a beneficiary other than the estate of the executor or administrator of a decedent’s estate;
-Annuities payable to survivors of military retirees.
Are unpaid Inheritance Taxes a lien on property?
Yes, the taxis a lien on all property for 15 years, unless paid sooner or secured by acceptable bond. Interest on unpaid tax will accrue at the rate of 10% per annum beginning eight (8) months after the date of the decedent’s death.
How about New Jersey’s Estate Tax?
In addition to the inheritance tax on the estate of certain resident decedents, New Jersey imposes an estate tax. The estate tax is designed to absorb any portion of the credit allowance under the Federal estate tax that is not fully taken up by the aggregate amount of all death taxes paid to any state, US Territory or District of Columbia. This tax is the difference, if any, determined by subtracting the amount of the inheritance, legacy and succession taxes paid to this state and elsewhere from the allowable credit. Even states that are partially or fully exempt from inheritance tax may be subject to New Jersey estate tax.
What is a waiver?
Certain property in the name of or belonging to the decedent cannot be transferred without the written consent of the Director, Division of Taxation. This consent, commonly known as a “waiver”, will not be granted until any tax due has been paid or provided for.
Are there exceptions to this waiver?
Not withstanding the waiver provisions above, any financial institution may release up to 50% of any bank account, certificate of deposit, etc. to the survivor. In the case of a joint account, the executor, administrator or other legal representative of a RESIDENT decedent’s estate. This procedure is referred to as a BLANKET WAIVER. This procedure is not available for the transfer of stocks and bonds. For a detailed explanation, see N.J.A.A. 18:26-11.16.
What is a self-executing waiver, Form L-8?
A self executing waiver, Form L-8, has been created for Class “A” beneficiaries in the estates of RESIDENT decedents. This form may be used in two instances:
1. Transfers to a surviving spouse in estates of decedents dying on or after January 1, 1985.
2. Transfer to a surviving spouse or any other Class “A” beneficiary in asserts of decedents dying on or after July 1, 1988.
Use of this form MAY eliminate the need to file a formal Inheritance Tax return.
This form is to be filed directly with the financial institution which will be authorized to release the subject asset without the necessity of receiving a waiver from the Division.
What is Real Property Tax Waiver,Form L-9
The Form L-9 has been created for Class “A” beneficiaries in the estates of RESIDENT decedents. This form may be used in two instances:
1. Transfers to a surviving spouse in estates of decedents dying on or after January 1, 1985 and the decedent’s interest was in the decedent’s name alone.
2. Transfer to a surviving spouse or any other Class “A” beneficiary in estates of decedents dying on or after July 1, 1988 and the decedent’s interest in the real estate was in the name of the decedent alone or with any Class “A” beneficiary.
Use of this form MAY eliminate the need to file a formal Inheritance Tax return.
This form is to be filed directly with the Transfer Inheritance Tax Branch. If the form is in order the necessary waiver(s) will be promptly issued.
Note: NEITHER THE L-8 NOR THE L-9 may be used where it is claimed that a relationship of mutually acknowledged child exists of for the release of a safe deposit box.
How about Federal Estate taxes?
Under current Federal law, property passing directly to surviving spouses and charities is not subject to taxation. In all other cases, it is necessary to contact a tax professional or attorney focusing on trusts and estates to find if the estate is subject to Federal Estate taxes.
The law required that a copy of the Federal estate tax return be filed with the Inheritance Tax Branch within thirty (30) days after filing of the original with the Federal government. Also, the Branch must receive a copy of any communication from the Federal government making any final change in the return, or confirming, increasing or reducing the tax shown to be due.
What about Federal marital deductions?
Presently, unlimited amounts of property can be transferred between spouses, who are United States citizens, without estate or gift tax.
Note: Certain transfers of an interest in property do no apply under this deduction. To determine whether this last note applies to your particular case, you may want to contact your attorney or the Internal Revenue Service.
When should a Federal estate tax return be filed?
Form 706 must be filed and any tax due must be paid within nine (9) months. The nearest Internal Revenue office will furnish tax form 706.
If your estate is subject to Federal Estate Tax, you should seek professional assistance in estate planning. Consideration of tax aspects can save heirs money.
What is a letter of last instruction?
This is a separate, not legally enforceable document containing instructions and information for your executor, executrix or personal representative. This letter is not part of the Will. This letter is to be opened upon your death by your executor, executrix or personal representative and should contain the following:
-Names, addresses and phone numbers of those people that you wished notified at death, the members of your family and relatives and relationships to you.
-A statement as to where your Will may be found.
-Instructions as to funeral and burial.
-If you are a veteran, you may wish to be buried in a national cemetery. Your discharge papers from the armed forces will be needed for such an arrangement.
-Collection of all records, such as birth and baptismal certificates, certificates of automobile ownership, social security card, marriage certificate, divorce certificate, naturalization and citizenship papers, etc.
-A catalogue of your membership certificate in any lodges or fraternal organizations which may provide death or cemetery benefits and where they will be found.
-The location of any safe deposit boxes and where the keys are kept.
-A list of insurance policies and where they may be found.
-A list of all bank accounts, checking and savings accounts, their locations and where the passbooks are kept.
-A list of all other savings accounts such as: credit union deposits, (IRA) Individual Retirement Accounts, etc. and passbook locations.
-A list of trust and/or pension systems from which your estate may be entitled to receive benefits.
-A statement of the location of copies of income tax returns for the previous five years.
-A list of debts and names and addresses of creditors.
-A list of any prepayments made on funeral expenses.
-A statement of reasons for actions taken in your Will.
-A list of any gifts made and information needed in order to calculate estate tax due.
Dying With a Will (probate)
What is meant by “probate?”
Upon the death of the testator or testatrix (maker of the Will), the probate process can begin. This is the legal process that establishes the genuineness of the Will. It is done by the Surrogate in the county where the testator or testatrix resided at the time of death. Although the process can begin any time, the Surrogate cannot issue letters until the 11th day after the death of the decedent. This time allows for a caveat (a notice given by an interested party to stop the probate of a Will or issuance of letter of administration) to be filed.
When is the Will admitted to probate?
After any witnessing requirements are met, the executor or executrix qualifies by signing the Application for Probate, the Authorization to Accept Service of Process and qualification forms, the probate clerk will prepare a Judgment which admits the Will to probate. If the Will appears on its face to have been properly executed and no dispute, doubt or difficulty arises, the Surrogate then signs the judgment (admits the Will to probate) and issues Letters Testamentary, which is the authorization for the Executor or Executrix to act on behalf of the estate.
How do I begin the probate procedure?
The probate procedure is commenced by the Executor or Executrix or Personal Representative producing the original Will for probate at the Surrogate’s office, along with a copy of the certified death certificate, a list of all the next of kin of the decedent along with their relationship, addresses and ages if minors, and if the Will is not self-proving, at least one witness who signed the Will to prove the signature on the Will.
How do I get the Will?
If the will is kept in the lawyer’s fire proof files, the Executor need only call the attorney to obtain the Will. If the Will was kept in a safe deposit box, after the death of the Testator/Testatrix, the Executor or Executrix or Personal Representative is allowed to remove the original Will, the deed to the cemetery plot and certain life insurance policies from the decedent’s safe deposit box before probate in the presence of a bank officer and without the presence of a representative of the Inheritance Tax Bureau.
What is a Surrogate’s (Short) Certificate?
This is a legal document issued by the surrogate’s office that the Executor or Executrix or Personal Representative uses as proof of his authority to transfer or sell assets of the deceased.
How many Surrogate’s (Short) Certificates do I need?
This varies depending upon the number of assets in the decedent’s name alone, i.e., bank accounts, automobiles, stocks, bonds, etc.
Is it necessary to send copies of the Will to the beneficiaries?
Within 60 days after the date of the probate of the Will, the Executor or Executrix or Personal Representative must mail to all beneficiaries under the Will and to all persons who would inherit if there were no will, at their last know addresses, a notice in writing that the Will has been probated, the place and date of probate, the name and address of the Executor, Executrix or Personal Representative and a statement that a copy of the Will will be furnished upon request. If the names or addresses of any of those persons are unknown, or cannot by reasonable inquiry be learned, then notice of probate of the Will should be published in a newspaper in the county naming those persons having a possible interest in the probate estate.
What are the basic requirements of the Executor or Executrix or Personal Representative?
The Executor or Executrix or Personal Representative is required to collect and safeguard the assets of the estate, to pay the debts of the decedent and any taxes due, to make distribution of the beneficiaries, and if required, to provide and accounting of his or her administration of the estate. Your attorney can give you further advice as to specific duties and obligations.
Am I entitled to compensation for acting as Executor?
An Executor or Executrix or Personal Representative is entitled to corpus commission of 5% of the first $200,000 of the estate assets subject to administration, 3.5% on the excess over $200,000 up to $1,000,000 and 2% or such other percentage as the court may determine on the excess over $1,000,000. Allowance of commission on corpus in excess of $200,000 shall be made with reference to their actual pain, trouble and risk in settling the estate, rather than in respect to the amount of the estate. If there is more than one Executor or Executrix, an additional 1% corpus commission may be allowed by the court for each additional Executor or Executrix.In addition to corpus commissions, an Executor or Executrix is entitles to income commissions of 6% of income earned on estate corpus during the administration of the estate.
Where does the Executor or Executrix obtain funds to pay debts?
The Executor or Executrix or Personal Representative may, in most cases, withdraw up to one half of the funds in the decedent’s New Jersey bank accounts upon presentation of a Surrogate’s (Short) Certificate. The Executor or Executrix or Personal Representative should place these funds into an Estate checking account that can be used to receive and distribute funds on behalf of the Estate.
What effect does a Will have on real estate owned jointly?
Real estate owned jointly by husband and wife in the form of ownership legally known as “Tenancy by the Entirety”is not controlled by the Will of the spouse who dies first. Absolute ownership of the property will pass to the surviving spouse who has the rights of survivorship, regardless of what the Will may provide.
If two or more persons other than husband or wife own real estate together, each owns an undivided share as “tenants in common,” unless the deed states they are to own “as joint tenant and not as tenants in common.” With exceptions, real estate held in joint tenancy goes to the surviving joint owners when one joint owner dies. An interest in real estate owned by tenants in common passes to the heirs of the deceased.
What about bank accounts or certificates of deposit jointly owned by spouses?
Certain bank accounts and certificates may be owned by husband and wife with rights or survivorship, which means that upon death of one party to the account, the surviving spouse becomes the sole owner. The account does not pass through the decedent’s estate. The surviving spouse, by filling out and “affidavit of Waiver” (form L-8), is allowed to transfer the jointly held accounts to his or her own name. The Affidavit of Waiver is available from the bank.
What about life insurance policies?
A life insurance policy is a contract between the policy holder and the company. The proceeds are paid according to the terms of each contract.
Life is insurance can be payable specifically to a designated beneficiary or to a trust or your estate. A contingent beneficiary should be named as well as a primary beneficiary in case of simultaneous death of both the policyholder and the beneficiary, of if the beneficiary dies first. Without a contingent beneficiary, life insurance passes to the estate and is subject to New Jersey Inheritance Tax and the Executor’s or Executrix’s or Personal Representative’s commission.
The decision on designation of beneficiary can be quite significant and you may wish to consult your attorney to find out the pros and cons to the available choices.
Can I protect myself from creditors after the estate is settled?
It may be advisable for the Executor or Executrix or Personal Administrator to obtain an order requiring creditors of the decedent to present their claims within six (6) months from the time of the order. This order is published by the Surrogate. An Executor or Executrix or Personal Representative may then act in reliance upon the belief that all creditors have presented claims within that period.
Do I have to pay all claims?
If claims are made, the Executor or Executrix or Personal Representative does not have to automatically accept the claims but can dispute them and has three months to make any decisions.
Do I need a formal accounting and how do I prove that legacies/bequests were paid?
A formal accounting is a complex breakdown of all assets, disbursements, distributions, fees and commissions generally prepared by an attorney.In New Jersey, most estates are settled without having formal court accountings. Instead the Executor or Executrix or Personal Representative obtains a Release and Refunding Bond (the written agreement and consent of all beneficiaries dispensing with a formal accounting, approving the actions of the Executor or Executrix or Personal Representative, the amount and manner of the distribution and releasing the Executor or Executrix or Personal Representative from further liability) from each person taking a share as provided in the Will. The refunding bond is then forwarded to the Surrogate for filing and recording.
Do all states have the same probate laws?
No, although New jersey is one of several states to enact the Uniform Probate Code, most states have their own probate laws. It is a good idea to have your Will checked by an attorney when you move to another state.
Dying without a Will (Intestate Succession)
What happens if I die without a Will?
If you die without leaving a Will (intestate) and are a resident of New Jersey, state law provides the manner for distributing your property. Your net estate remaining after deductions or funeral expenses, debts, taxes and administrative expenses, etc., would be distributed under the Statutes governing Decedent’s Estates.
How will my property be distributed if I have no will?
Property owned jointly by husband and wife with rights of survivorship is automatically owned by the survivor.
If you die without a Will you are “Intestate” and your assets pass in accordance with rules set up by the State. A common misunderstanding is that if you die without a Will your assets may end up passing to the State. This is possible, but only if you have no living relatives…including stepchildren and stepchildren’s descendants. The State of New Jersey has set up rules to divide the assets of intestate estates, but often these rules do not give assets to the people that the deceased person would have had his or her wishes been documented in a Will. The intestate rules are set out in Title 3B, Administration of Estates, Chapter 5, Intestacy.
Most people assume that if they die without a Will all their assets pass automatically to their surviving spouse, this is not necessarily true!
The surviving spouse receives everything only if the intestate deceased had neither surviving issue (children, grandchildren, etc.) nor surviving parents, or if the decedent did have surviving descendants but each such descendant is also a descendant of the surviving spouse (the decedent had no children from a previous relationship) and there is no other descendant of the surviving spouse who survives the deceased (the decedent had no step-children who will compete to inherit with his descendants at the surviving spouse’s death).
If a parent of the deceased survives along with the surviving spouse, but there are no living descendants, then the surviving spouse receives first 25% of the intestate estate, but not less than $50,000.00 nor more than $200,000.00, plus three-quarters of any balance of the intestate estate. The parent receives the remainder.
If there are surviving descendents, all of whom are also descendants of the surviving spouse, but the surviving spouse has his or her own descendants that are not the descendant of the deceased (step children), then the surviving spouse receives the first 25% of the intestate estate, but not less than $50,000.00 nor more than $200,000.00, plus one-half of the balance of the intestate estate. The remainder passes to the decedent’s descendants.
If one or more of the deceased’s surviving descendants is not the descendant of the surviving spouse (surviving spouse is the step-mom/dad), the surviving spouse receives the first 25% of the intestate estate, but not less than $50,000.00 nor more than $200,000.00, plus one-half of the balance of the intestate estate. The remainder passes to the decedent’s descendants.
If there is no surviving spouse then the intestate estate passes to the decedent’s descendants.
If there is neither surviving spouse nor descendants, then the intestate estate passes to the parents equally if alive or to the surviving parent.
If there is no surviving spouse, descendants or parents then the intestate estate passes to the descendants of the decedent’s parents.
If there is no surviving spouse, descendants, parents or descendants of parents, but the decedent is survived by one or more grandparents, one-half of the intestate estate passes to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the decedent’s maternal relatives in the same manner; but if there is no surviving grandparent, or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent’s relatives on the other side in the same manner as the half.
If there is no surviving spouse, descendants, parents, descendant of a parent, or surviving grandparent, but the decedent is survived by one or more descendants of grandparents, the descendants take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation.
If there is no surviving spouse, descendants, parents, descendant of a parent, grandparent or descendants of grandparents, then the decedent’s stepchildren or their descendants take by representation.
How is an administrator appointed when there is no Will?
When there is no Will, an administrator, administratrix or personal representative is appointed by the Surrogate’s Court. The surviving spouse has the first right to apply for the position of administrator, however any heir of the decedent may be appointed. When one of several heirs seeks to be appointed administrator, all other heirs must renounce their right to be appointed administrator before the Surrogate will make the appointment. In most cases, a surety bond must be furnished by paying a premium to a surety company for signing this bond to cover the value of the real and personal property in the estate. Although the process can begin at any time, the Surrogate cannot issue letters until the 6th day after the death of the decedent.
What is the administrator required to do?
The Administrator is, in general, required to collect and safeguard all of the assets of the estate, eventually pay the debts of the decedent, any taxes due, make distribution to the proper heirs and be able to provide an accounting of his actions to the beneficiaries of heirs. You may wish to call an attorney to give you further advice as to specific duties and obligations.
Am I entitled to compensation for acting as Administrator?
An Administrator is entitled to corpus commission of 5% of the first $200,000 of the estate assets subject to administration, 3.5% on the excess over $200,000 up to $1,000,000 and 2% or such other percentage as the court may determine on the excess over $1,000,000. Allowance of commission on corpus in excess of $200,000 shall be made with reference to their actual pain, trouble and risk in settling the estate, rather than in respect to the amount of the estate. If there is more than one administrator, an additional 1% corpus commission may be allowed by the court for each additional administrator.In addition to corpus commissions, an administrator is entitles to income commissions of 6% of income earned on estate corpus during the administration of the estate.
Is all this paperwork necessary even on small estates?
There is a procedure available when the decedent dies without a Will, whereby the assets of small estates can be transferred to the surviving spouse without the necessity of administration. The spouse files and affidavit stating, among other things, that the decedent had no will and that all of the real and personal assets do not exceed $10,000.00.
How about small estates with no surviving spouse?
A similar procedure is used when the decedent dies without a will and leaves no surviving spouse but does leave next of kin. In such a case, if the total value of the real and personal property of the decedent does not exceed $5,000.00, one of the next of kin with consent of the others may file an affidavit in lieu of administration.
Do I need a Lawyer to Make a Will?
As long as a Will has satisfied all the requirements set forth by the state in which your live or the state in which you sign the Will, the Will is valid. No state has made having a lawyer draft the document be a requirement of a valid Will. The problem, of course, is that unless you regularly work as an Estate Planning Attorney you likely do not know what is required to make a valid Will or Trust. A lawyer that focuses exclusively on Wills and Trusts can help make sure your wishes are followed after your death.
Do Jointly Held or “In Trust For” Assets Pass Under the Terms of My Will?
No. Jointly Held assets pass to the other joint owner at your death and “In Trust For” assets will pass to whomever you have designated as the beneficiary. It is a common, erroneous, mistake to believe that if you draft a Will that its terms cover an IRA, Life Insurance Policy or a Bank Account that names a beneficiary. Your Lawyer should work with you to review all your accounts, deeds and IRAs to make sure your assets pass to the correct person at your death.
Can I Use My Will to Care for a Special Needs Person so They Still Qualify for Their Government Programs?
Yes, if done properly. This is a rather complex area of the law and the terms in your Will must be exact. But, if done properly a Special Needs Trust can be created to care for a Special Needs Person while keeping the Person on their existing government programs.
Can I Put My Funeral Arrangements in my Will?
Yes, but be careful, as your family will likely not contact your Estate Planning Lawyer or look at your Will until after your funeral. Make sure that your plans are in your Will and are known to key people who will be contacted at your death.
How Often Should I Review My Will?
Will reviews are situational, but as a general rule you should review Will terms annually. At our firm we send you a summary of your Will’s terms at least twice a year and do not charge for an in-person Will review if there are no changes.
Can a Will help Reduce Death Taxes?
The terms of your Will and the Estate Planning techniques used can certainly reduce or even avoid Estate and Inheritance Taxes. This is a very complex area of the law and you should work closely with your Estate Planning Lawyer.
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