Blog & Resources

From our “Ask a Question” mailbag: My mother died four months ago as a resident of Camden County and my sister and I cannot locate her will. We thought it thought it would be in the safe deposit box, but it was not. I cleaned out all of her papers in the house. Now, I think I may have accidentally thrown out the will. What can we do?

If your mother’s will cannot be located, then your mother is considered to have died “intestate,” meaning without a will. When someone dies without a will in New Jersey, the New Jersey Rules of Intestacy apply. These rules dictate who is eligible to serve as the Administrator of the estate and how your mother’s assets will be divided up. If we can find a copy held by the lawyer, it is possible to file the copy, but I would need to know more facts.

From our “Ask a Question” mailbag: My father-in-law died in Lehigh County without a Will. My wife has one brother who is younger than her. Who is responsible for his funeral bill, as the funeral director is billing us?

Typically, when a person dies the family will make arrangements with the funeral director to pay the bill themselves and then are reimbursed by the estate. Often, the funeral director will not take on the expense of the funeral without knowing they will be paid. Your question makes it sound as if you did not agree ahead of time to be responsible for the bill. If so, then you are not responsible to pay the bill, though I am sure the funeral director would prefer that you pay that bill.

From our “Ask a Question” mailbag: My aunt’s will names me as her Personal Representative and divides the estate between all of her nieces and nephews. We are not a close family and there have been disputes in the past. I am worried that my cousins will be angry that I was named the Personal Representative and may cause trouble. Can they sue me as the Personal Representative?

If you agree to be sworn in by the Surrogate as the estate’s Personal Representative, you will then have a fiduciary duty to all beneficiaries to act in their best interest. You will be given broad powers and be largely unsupervised by the Surrogate.

To counter these broad powers, the beneficiaries are given the right to petition Surrogate’s Court to review every action and expense. Should the court find that any action of yours reduced their inheritance, the judge could choose to surcharge you (fine you) to make up for any loss.

From our “Ask a Question” mailbag: My father died recently. I have been told he had a will done in 2007, but I can’t find it. Where would it be registered?

A will is not usually registered anywhere until the person dies. Normally, it is kept by the lawyer who drafted the will or in a safe location in the house. If you didn’t find it in the house or in a safe deposit box, then you are left to backtrack over time to find the lawyer. This can be a challenge.

My firm sends out summaries of the documents we draft every 4 months to stay in contact with our clients. The attorney who drafted your father’s will may have a similar practice, so watch the mail. Probate is started by having the executor named in the will file the will with the Surrogate. If you can’t find a will, then you can open the estate via Administration. It would be wise to retain an experienced probate lawyer to help you and, if you think there maybe conflict with siblings if there is no will, retain a firm experienced with estate related litigation.

From our “Ask a Question” mailbag: I have served as the executor for my grandfather’s Bucks County estate for over a year and wish to close the estate, but my uncle claims that I have embezzled money from the estate. This is unfounded, but how can I close the estate while he makes these claims?

As the executor, you could make an “at risk” distribution of the estate assets. This means you distribute the money without getting a release. This is not advisable, as your uncle could then use his inheritance to hire a Bucks County Orphans’ Court Lawyer to force you to file a formal account. Because you would have distributed the estate funds, this cost would come out of your pocket.

From our “Ask a Question” Mailbag: After my father’s death, a man arrived claiming to be my father’s illegitimate son. The will says that my father’s estate is divided between his heirs, “per stirpes.” Can this man get a share of the estate?

Per Stirpes

The phrase “per stirpes” literally means “by the branch”; distributing an estate equally down the bloodline. So, if your father did not exclude this man and if he is truly your father’s son, then he gets a share of the estate. The estate can demand that he take a DNA test to prove he is your father’s son. This is possible by using your blood and that of your siblings. However, this may require a Petition and order from the Orphans’ Court. Therefore it would be wise for the Personal Representative to retain an experienced Estate Litigation Attorney.

From our “Ask a Question” mailbag: I am the Personal Representative for my mother’s estate. I have paid all of the creditors and have distributed the estate to my siblings and myself. I don’t think I have anything left to do, how do I close the estate?

Saying that an estate is “closed” is a misnomer, as the estate is never, really closed. The term refers to when the final assets of the estate are distributed, which normally means that the Personal Representative has no further work to perform. This takes place after the family settlement is signed.

From our “Ask a Question” mailbag: My brother has had money problems his whole life. At various times my parents lent him money and he made a few efforts to repay, but he owed most of it still at their deaths. As executor I brought these loans up and he now says they were gifts, not loans. We split the estate equally, but if he gets to say these were gifts he will have ended up with much more money than I, which is unfair. What can I do?

As the executor you are tasked with gathering the estate assets. Loans are assets, so you do have the right to gather information to prove the validity of the loans. As executor you also have the right to hire professionals to assist you, such as accountants and attorneys.

It is time for you to hire a professional to review the evidence and advise you. You could take the position that these are loans and reduce his share of the estate, but if he refuses to sign a release he will be free in the future to file a petition forcing you to account and demanding a larger share of the estate.

From our “Ask a Question” mailbag: Before she died, my mother-in-law lived in Delaware County, Pennsylvania and I drove from the Jersey Shore every weekend to take care of her. Now that she has died, her estate is being divided up between her children and they refuse to compensate me for all the miles I traveled taking care of their mother. Can I make a claim to be paid?

Your mother-in-law’s estate is to be divided up between the heirs as her will dictates, or through the rules of intestacy if she had no will. Prior to the division of the assets, all her creditors will be paid. If you had no agreement showing that you were to be reimbursed, it will be difficult to prove that you are a creditor.

From our “Ask a Question” mailbag: My mother died and I was named Executor of her estate. The estate is divided equally between myself and my brother and sister. She had so many things in her house that none of us want. Can I give these to charity and then take a deduction on the Pennsylvania Inheritance Tax return?

If I have the facts correct, all assets are equally divided between you three siblings. This includes all personal property. If so, then the right to collect the property is with the children and the Commonwealth’s Inheritance Tax is due on the fair market value of those things. The tax for children is 4.5%.