Klenk Law

Dying Without a Will in New Jersey

Posted on Mon Aug 6, 2012, on Will Contests and Will Challenges

Many New Jersey residents will die without a Will. Many will die unexpectedly before they can prepare a Will, but most people simply just don’t get around to writing a Will. If you die without a Will in New Jersey, you are said to die “Intestate”, or without testamentary documents. It is not true that if you die without a Will in New Jersey that your assets pass to the state. Instead, a set of rules decide who is in charge of your estate and to whom your assets pass.

Surrogate’s Court: If a New Jersey relative of yours dies without a Will (“Intestate”), and you wish to represent that person’s estate, you must get permission though the Surrogate’s Court. Each county has a Surrogate’s Court, so the first step is to determine which Surrogate’s Court has jurisdiction over the estate. For example, if the deceased was a resident of Camden County but died in a Berks County hospital, it is the Camden County Surrogate’s Court that has jurisdiction over the case. At times a person becomes ill and moves just prior to death. For example, if a person lived her entire life in Gloucester County, but became ill and moved to her daughter’s house in Atlantic County two months before she died and she would have never moved but for the illness, the Gloucester County Surrogate’s Court has jurisdiction over the estate.

Administrator: If a Will exists, the person appointed in the Will to administer the estate is called the “Executor”. If there is no Will, the person wishing to take charge of an intestate’s estate must apply to the Surrogate asking permission to be designated the estate’s “Administrator”.

Application: From the Sussex County Surrogate to the Ocean County Surrogate, the procedures to apply to open an intestate estate are similar. You must have an original death certificate, an estimate of the probate estate’s gross value, the legal names of the intestate’s spouse, descendants or other next of kin and cash or a check to cover the surrogate’s fees. If there are other people who have a superior or equal right to you to serve as Surrogate, you must also have them execute a formal written Renunciation. If you decide to renounce your right to serve as Administrator you are not renouncing your right to receive your share of any inheritance. If the eligible people cannot agree on which of them should serve, it is a good idea to retain a Probate Lawyer, an Attorney who focuses on Probate as his or her main area of law, as a hearing in the Surrogate’s Court is the likely result.

Who Can Serve as Administrator: The rules governing who has the right to serve as the Administrator are uniform from Bergen County to Cumberland County. Preference is given first to the deceased’s surviving spouse, surviving partner of a civil union or domestic partner, followed by children, grandchildren, parents, siblings and then nieces/nephews. Should no family member come forward to serve, and then creditors or any other interested party may ask to be appointed Administrator.

Bonding: Most Wills contain a clause saying that the Executor does not need to post a bond. If you die intestate, there is no such release. If you are applying to be appointed Administrator in most cases the Surrogate will require you to obtain a bond to protect creditors and heirs should you lose or steal estate assets. This fee is reimbursable by you from the estate funds.

Administrator’s Duties and Responsibilities: Salem County, Monmouth County or Burlington County, it doesn’t matter which, if you are appointed as a New Jersey Administrator you are a fiduciary with responsibilities to the heirs and the creditors of the estate. You can be forced to appear in the Surrogate’s Court and account for every penny and made to justify every decision you make. Should you be found to have made an error, you could be surcharged and forced to pay back any losses suffered. To protect yourself you are authorized to use estate money to retain professionals to assist you, such as New Jersey estate attorneys, realtors and accountants.

Distributions: No distributions to the heirs should be made until all creditor issues are resolved, all taxes (including the New Jersey Estate Tax and Inheritance Tax) are resolved, Receipts and Releases are obtained and filed with the Surrogate and a full release of liability is obtained from the heirs. If the Administrator distributes all the estate assets without these steps and later an heir petitions for an Accounting, the Administrator must appear and then would likely have to pay all expenses out of his or her own pocket, or if a creditor makes a claim the Administrator may have to pay the creditor out of his or her own money.

Who Inherits When a Person Dies Without a Will? New Jersey laws dictate whom inherits the assets of a person who died without a Will. The legal term is, “Intestate Succession”. If the person died on or after February 27, 2005 Intestate Succession will be as follows:

A. Surviving Spouse, surviving partner of a civil union or domestic partner:

  • The Intestate Share of the Surviving Spouse, surviving partner of a civil union or domestic partner is:
    • The entire estate if no descendant or parent of the deceased survives and if all the deceased surviving descendants are also descendants of the surviving spouse, surviving partner of a civil union, or domestic partner, and there is no other descendant of the surviving spouse, surviving partner of a civil union or domestic partner who survives the deceased.
    • The First 25% of the Intestate Estate, but not less than $50,000 nor more than $200,000, plus ¾ of any balance of the intestate estate, if no descendant survives the deceased, but a parent survives.
    • The First 25% of the Intestate Estate, but not less than $50,000 nor more than $200,000, plus ½ the balance of the intestate estate:
      • If all of the deceased’s surviving descendants are also descendants of the surviving spouse, surviving partner of a civil union, or domestic partner and the surviving spouse, surviving partner or a civil union, or domestic partner has one or more surviving descendants who are not descendants of the deceased;
      • If one or more of the deceased’s surviving descendants is not a descendant of the surviving spouse, surviving partner of a civil union, or domestic partner.

B. Heirs other than the Surviving Spouse, Surviving Partner of a Civil Union, or Domestic Partner:

  • The Intestate Share of heirs others is:
    • Any part of the Intestate Estate not passing to the deceased’s surviving spouse, surviving partner of a civil union, or domestic partner, or the entire estate if there is no surviving spouse, surviving partner of a civil union, or domestic partner, pass in the following order to the individuals designated below who survived the deceased:
      • To the deceased’s descendants by representation;
      • If there are no surviving descendants: to the deceased’s parents equally if both survive, or to the surviving parent;
      • If there are no surviving descendants or parent: to the descendants of the deceased’s parents or either of them by representation;
      • If there is no surviving descendant, parent or descendant of a parent, but the deceased is survived by one or more grandparents, half of the estate passes to the deceased’s paternal grandparents equally if both survive, or to the surviving grandparent, or to the descendants of the deceased’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the deceased’s maternal relatives in the same manner; but if there is no surviving grandparent, or descendant of a grandparent on the paternal or maternal side, the entire estate passes to the deceased’s relatives on the other side in the same manner as the half.
      • If there is no surviving descendant, parent, descendant of a parent, or grandparent, but the deceased 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 deceased, but if of unequal degree those of more remote degree take by representation.
      • If there are no surviving descendants of grandparents, then the deceased’s step-children or their descendants by representation.

Throughout our website, klenklaw.com, you may find more information about Probate, and the documents that make up various Estate Plans. Our firm focuses exclusively in the area of estate planning, probate, and the litigation surrounding estate planning and probate. If you need assistance with an Intestate Estate or with developing your Estate Plan, please call one of our Probate Lawyers or Estate Planning Attorneys for a free consultation. We have Estate Planning Attorneys in New Jersey, Pennsylvania, New York, Minnesota and Florida.

Probate and Estate Planning is all our Estate Planning Lawyers do!

Tags:

Administrator, Application, Assets, Bonding, Distributions, Estate, Inherit, Intestate, Intestate Succession, New Jersey, State, Surrogate’s Court, Surviving Spouse, Testamentary Documents, Wills

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