Frequently Asked Questions

A common misconception is that probating a Will is a massive, expensive and unnecessary undertaking that simply adds stress in a time of grief and anxiety. However, in most cases, the probate process is neither terribly complicated nor terribly expensive, and an experienced estate planning attorney can help you through every step.

Essentially, the probate process is legally proving the validity of the Will and officially appointing the executor named in the Will. Going through the process streamlines and simplifies the task of acting on the deceased’s wishes for their estate.

Here are some things to keep in mind. First, not every Will needs to be probated. Probate is only necessary if the decedent owned assets in his name alone or in joint names with another person other then a spouse. For example, when the first spouse dies, there is no need to probate a Will because all assets were held jointly.

If probate is necessary, the process begins by presenting the original Will, a certified copy of the death certificate, and a list of names and addresses of the closest next of kin to the County Surrogate where the decedent lived at the time of death. 

The Surrogate then reviews the Will and determines whether all legal requirements are satisfied. If the Will is self-proving, as most are, the Will can be admitted without any additional proofs being required. Assuming that the Will is sufficient and no issue is raised, certificates are prepared by the court and signed by the executor. These certificates allow the executor to take all action that the deceased could have taken, such as change or close bank accounts, transfer assets, etc.

The next step is for the executor is to take an inventory of the estate. In the case of smaller estates, this can be a fairly informal process. Depending on the situation, particularly if there are multiple beneficiaries, this may require appraisals to be done of larger items, such as real estate.

Once the executor has the certificates, he or she generally has the following responsibilities: 1) to collect the estate’s assets and information; 2) to determine any claims against the estate; 3) to manage the estate; and 4) to pay the estate’s taxes.

One important note: while the executor is responsible for paying claims of the estate, it is vital to remember that the executor also has the right to dispute any claims. I highly recommend that efforts be made to negotiate bills that come in.

An experienced estate planning attorney can help with all of the above. Although the process explained above is not incredibly complicated, many people find it helpful to have an expert to turn to who can help explain the process and take on all tasks which may otherwise seem overwhelming. 

Estate Planning is crucial for every life stage and for all types of assets.  It is important to understand what assets will flow through your Last Will and Testament, what assets are separate non-probate assets, what the tax implications of your choices are, whether it is recommended that you do Will based planning or Trust based planning, how to ensure that your children are adequately protected, and whether you should consider setting up asset protections.

A Last Will and Testament, an Advance Directive and a Durable Power of Attorney are crucial estate planning documents that provide financial, medical, and legal protections during your lifetime and after your death. They ensure that your wishes are honored and that you are cared for during your lifetime as well as preventing complications for your family and offering you peace of mind. 

Here's a simple summary of these documents:

1. Will (also known as Last Will and Testament):

• Purpose: A Will outlines how you want your assets distributed after your death.
• Importance: It ensures your assets go to the intended beneficiaries (family, friends, charities), allows you to choose who acts as Guardian, Executor and/or Trustee,  and avoids intestate succession (where the state dictates distribution).
• Protection: It ensures that your children are appropriately protected,  prevents family disputes over inheritance, ensures a smooth transfer of your assets and possessions.   

2. Advance Directive (also known as Healthcare Directive, Living Will, or Healthcare Power of Attorney):

• Purpose: An Advance Directive, often including a living will and a healthcare power of attorney, allows you to specify your preferences for medical care if you become unable to communicate your wishes. 
• Importance: It guarantees that the doctors will share your medical information with the people you choose and allow them to make decisions about your care when appropriate, and ensures that your healthcare decisions are respected, even when you cannot make them yourself. 
• Protection: It prevents confusion and disagreement among family members and healthcare providers about your desired treatment, especially in end-of-life scenarios. 

3. Power of Attorney:

• Purpose: A power of attorney grants a trusted individual the authority to make financial or healthcare decisions on your behalf if you become incapacitated. 
• Importance: It ensures your financial affairs are managed appropriately and your healthcare needs are met when you are unable to do so yourself. For example, without this document your family will not be able to file your taxes, deal with social security and health insurance companies, pay your bills or even sell your property if it becomes necessary.
• Protection: It helps avoid the need for a court-appointed guardian, which can be costly, time-consuming, and may not align with your preferences. 

Many clients ask me this question, and the answer depends on your unique circumstances. In New Jersey, the probate process is generally efficient and inexpensive, so most residents do not create trusts solely to avoid probate. Whether trust-based planning or will-based planning is right for you is something we can determine together in a free consultation. Contact us to learn more.