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Frequently Asked Questions

Klenk Law specializes in trusts, wills, estate planning, probate, and will challenges and will contests, with offices in Philadelphia, Bucks County, Allentown, New York and New Jersey.

Probate FAQs

+ What is Probate?

Probate refers to the process where the State or Commonwealth recognizes the executor or administrator as the estate’s official representative. The person wishing to serve as executor submits a petition, often prepared by a Probate Attorney, along with the original Will and an original death certificate to the Register or Surrogate. If there is no Will, the Probate Attorney instead prepares a petition for administration. If all is in order, the executor or administrator then receives documents proving that he or she is the estate’s official representative. Probate has begun.

+ Why do I need a Probate Lawyer, I am an Executor?

No matter where the estate is located, Center City Philadelphia; Broward County, Florida; Atlantic County, New Jersey; or New York City, New York, the Executor or Administrator is Personally Liable for errors that harm the beneficiaries. When an executor hires a Probate Attorney that Estate Lawyer’s primary job is to advise and protect the executor. A Probate Attorney guides the personal representative through the probate process which may include a multitude of responsibilities, such as the sale of real estate and personal property, completing many different tax returns, shutting down companies, and managing disputes between beneficiaries. Most important for the executor, the Probate Attorney also obtains a complete release of liability for the executor from beneficiaries. This is true whether the estate is in Center City Philadelphia; Broward County, Florida; or Atlantic County, New Jersey.

+ What Tax Returns Does an Executor File?

It is important that all tax returns are filed correctly and in a timely fashion.

+ 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.

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February 5th, 2016
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