Most Recently Updated November 5th, 2017: Dying Without a Will in New Jersey.
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From Our “Ask a Question” mailbag: Do I Need a Will? What Are the Problems From Dying Without a Will in New Jersey?
No Will Means Intestacy.
Many New Jersey residents will die without a Will. Some die unexpectedly before they can prepare a Will, but most people just don’t get around to writing a Will. If you die without a Will in New Jersey, you die “Intestate.” Intestate means you die without testamentary documents. It is not true that if you die without a Will in New Jersey, 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.
How To Open The Estate When There Is No Will?
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 from 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 before death. For example, if a person lived her entire life in Gloucester County, but grew sick 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.
If a Will exists, the Will appoints the “Executor” or “Personal Representative” to administrate the estate. If there is no Will, the person wishing to take charge of an intestate’s estate must apply to the Surrogate. The Surrogate has the power to designate the estate’s “Administrator.”
From the Sussex County to the Ocean County, the procedures to apply to open an intestate estate are similar. You must have an original death certificate. You also must provide an estimate of the probate estate’s gross value. Assemble the legal names of the intestate’s spouse, descendants or other next of kin. You will need cash or a check to cover the surrogate’s fees. If other people have a superior or equal right to serve as Surrogate, they must execute a formal written Renunciation. Should you decide to renounce your right to serve as Administrator, you are not relinquishing your right to receive an 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 principal 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. This is followed by children, grandchildren, parents, siblings and then nieces/nephews. Creditors or any other interested party may ask to be appointed Administrator if no family comes forward.
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 from the estate funds.
Administrator’s Duties and Responsibilities.
Salem County, Monmouth County or Burlington County, it doesn’t matter which. A New Jersey Administrator is a fiduciary with responsibilities to the heirs and the creditors of the estate. The Surrogate’s Court can force your appearance to account for every penny and made to justify every decision you make. Should the court find that you errored, the court could surcharge you. Further, the court can force your payment for losses. To protect yourself you are authorized to use estate money to retain professionals to assist you. It is wise to hire a New Jersey estate attorney, realtor, and an accountant.
Make no distributions to the heirs until resolving all creditor issues and paying all taxes (including the New Jersey Estate Tax and Inheritance Tax). Further, obtain all Receipts and Releases and file a full release with the Surrogate.
If the Administrator distributes all the estate assets without these steps and later an heir petitions for an Accounting, the Administrator must appear. Consequently, with the estate assets distributed, the Administrator must should all court expenses. Or, if a creditor makes a claim, the Administrator may have to pay the creditor out of his or her own money.
Who Gets Your Things If You Die Without A Will In New Jersey?
Who Inherits When a Person Dies Without a Will? New Jersey laws dictate who 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;
- And, 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.
For more information, see our Article New Jersey Intestacy Rules: Everything You Need to Know.
Dying Without a Will in New Jersey.
Space here doesn’t allow me to give a great deal of detail. So, if you would like more information I encourage you to read my Article Probate and Estate Administration: Everything You Need to Know. Or my Article Probate Process: Everything You Need to Know. If you are wondering about how to avoid probate, please read more about estate planning options including more advanced ideas using Irrevocable Trusts.
In this Post, I tried to introduce you the issues raised by Dying Without a Will in New Jersey. Further, I included links to even more detailed information on my website. So, let me know how I did, comments and questions are welcome!
Furthermore, I would be happy to answer your questions. Also, if you have any other matters for a New Jersey Probate Lawyer, feel free to contact our office for a free consultation. We try to make the process as painless as possible!
Wills, Trusts, Probate, and Estate Litigation, It’s All We Do!
Author, Peter Klenk, Esq.
Peter Klenk, Probate Lawyer.
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 Probate Lawyers do!