By Adam Solan
Anyone who has administered a loved one’s estate or has thought about their own estate plan has undoubtedly heard the dreaded word “probate.” You may have heard horror stories about a friend of a friend whose grandmother’s estate was tied up in a probate nightmare and the time, energy, and expense it took to get out of it. Television and the internet are full of people advising on how to avoid this horrible process, most of which involves putting your property into a lifetime trust.
However, I am here to tell you that, in New Jersey at least, probate is not a dirty word or as intimidating (or as costly) as it seems.
First, a little history. The term “probate” comes from the Latin words “probare/probatum,” meaning “to prove/having been proved.” For centuries in England, scribes would begin a will with a Latin paragraph following the word “probatum,” indicating that the will was authentic and signed in the presence of a trusted authority. Today, we have done away with Latin paragraphs in wills, but the intent of probate is the same: to “prove” the validity of the decedent’s will and to qualify an executor.
“Unsupervised Probate” in New Jersey
Luckily, New Jersey has what is called “unsupervised probate.” Unlike some states where the court must approve all of the executor’s actions regarding the estate, the executor, once qualified, is allowed to act in the estate’s best interest without the court’s supervision.
The qualifying process is also relatively simple; you bring the original will and death certificate to the county Surrogate’s Office, fill out an estate questionnaire, pay any fees, and generally receive your Executor’s Certificate in a few weeks. With that certificate in hand, you may begin administering the estate, which includes inventorying the estate property, paying debts, and ultimately distributing the property to the decedent’s beneficiaries.
If Probate in New Jersey Isn’t So Bad, Do You Still Need a Trust?
I’m often asked, “What about putting my property into a trust to avoid the probate process?” While it is true that putting property into a trust may remove it from your probate estate and thereby avoid the probate process, it is not a one-size-fits-all remedy. It can have some downsides, such as expense and loss of direct ownership of the property. Even if a trust is right for you, a will is often necessary to ensure certain types of property and assets go into the trust. The positives and negatives of establishing a living trust are outside the scope of this article, but the point is that a trust, while an excellent method of transmitting property from one generation to the next, is not always the answer and is not the right choice for everyone.
Even though the process is relatively straightforward, many people find it intimidating, especially when they are grieving the loss of a loved one. That is where an estate planning attorney can come in. At Ansell.Law, our Wills, Trusts & Estates lawyers can help you create an estate plan that avoids probate where advantageous while also drafting an easy-to-authenticate will that clearly expresses your intentions regarding your property. We can also help guide you or your executor through the probate process to make it as painless as possible. In New Jersey, with our help, probate is nothing to fear.
