Most people know that when a person passes property through a will or dies without having made provisions for distribution of the property he leaves behind, the estate must pass through probate. However, many don’t understand exactly what probate is, or what to expect from the probate process. That may mean unpleasant surprises for the unprepared. For example, the probate process takes longer than many people expect, and may require significantly more paperwork and documentation than most inexperienced administrators anticipate.
A basic understanding of the probate process is helpful for anyone. Knowing what to expect in probate will help:
- The person creating a will choose the best qualified person to serve as administrator
- A person asked to serve as administrator make a good decision about whether she has the time, inclination and ability to fulfill the role
- A person who has been nominated administrator assess what type of assistance she may need in fulfilling her duties
- A beneficiary or heir of the estate understand his rights and know what to expect as the estate administration moves forward
Timeline for a New Jersey Estate
One of the elements of the probate process that is most surprising to those inexperienced with estate administration is the amount of time it takes to settle an estate. While there is an expedited probate process for very small estates that meet other specific criteria, most estate cases take several months (or more) to resolve.
Depending on the nature of the assets, the debts of the estate, the decisions made by the personal representative and the speed and efficiency with which the estate is administered, that time period could be significantly longer.
New Jersey Probate Process
The probate process begins with the opening of a case in the Surrogate Court. If the deceased left a will appointing a personal representative, that person will typically open the estate. Where there is no will, any interested party may commence the case, though it is most common for the surviving spouse to assume that duty and to be appointed personal representative.
The personal representative has a number of responsibilities, many of which are not anticipated by those unfamiliar with the probate process. Some of the core duties include:
- Inventorying and creating an accounting of estate property
- Identifying, notifying and paying creditors
- Filing tax returns
- Liquidating property as necessary to pay estate debts, taxes, and costs of administration
With limited exceptions, beneficiaries of the will or heirs of the estate must wait until these steps have been taken and the net value of the estate is clear before receiving distributions.
The Role of Heirs / Beneficiaries in the Probate Process
When the estate administration proceeds smoothly and the personal representative faithfully discharges his or her duties, the beneficiaries will generally have little to do outside of signing a few documents, perhaps reviewing an accounting or two, and waiting for the process to move forward. However, it is beneficial for heirs to have a general idea of the estate process for two reasons. First, it helps the beneficiary know what to expect, particularly in terms of obligations that may reduce the value of the estate and the anticipated delay in distributions and closing of the estate.
Heirs who have a basic understanding of the probate process are also better positioned to know when there may be an issue that requires intervention.
Who Needs an Estate Lawyer?
Whether or not an heir needs separate representation depends on the circumstances of the estate. In most cases, an heir will not require an attorney unless problems arise, such as the estate not moving forward, the personal representative failing or refusing to provide required information, or a suspicion that the estate is being mismanaged.
On the other hand, the personal representative of an estate will typically benefit greatly from the guidance of an experienced estate lawyer. The probate process can be complicated, and a knowledgeable advocate can help ensure that the personal representative fulfills all obligations, employs proper procedures and formats, and avoids wasting estate resources.