A GUIDE TO THE PROBATE
COURT - COUNTY OF HUNTERDON
Susan J. Hoffman,
The most sensible, practical and surest way we
can protect those who depend on us is by making a will.
I have assembled this booklet for distribution
to all county residents to inform the public of the advantage of preparing a
will, outline the meaning of the word "probate" and the course of
action required to complete probate.
Wills should be reviewed on a regular basis as
your situation in life changes such as children, moving to another state,
grandchildren, remarriage, purchase of real property, etc. State and Federal
laws also change constantly which could mean a revision in your will. Remember:
an investment in a properly drawn will could save your heirs additional
transfer inheritance taxes and income taxes at the time of your death.
If I can answer any questions or be of
assistance, the Surrogate's Court is open Monday through Friday 7:45 AM - 5:15
PM or by appointment.
For information regarding a guest speaker,
please contact me - I am available to speak to any group as a free public
Do you have a will? If not, you've probably
given some thought to it. You know it's a good idea to make a will, but one
thing or another keeps coming up and you put off doing something about it. It's
a subject you really don't feel like thinking about - somehow, executing a will
seems to make "the day of reckoning" a little closer.
Unfortunately, many people do not execute wills
for two reasons - procrastination and antipathy to thoughts of death. Another
reason for dying in testate (without a will) is that most individuals don't
have a clear idea as to the law. They realize that if they die without will,
their assets will be distributed to their family. But what they don't
understand is that the plan of distribution may not be in accordance with their
wishes. In fact, it's a good bet that it won't be as they would have
Before proceeding further, let's define the
will. It is a legal declaration of a person's intention concerning what shall
be done following the death, as to the disposition of the property and the
administration of the estate. Three characteristics of a will set it apart from
other forms of property transfer.
- A will is revocable during life - you can
change your mind.
- A will is inoperative until death - it's
provisions don't take effect until that time.
- A will only applies to the situation that
exists at death - as to the extent of your property holdings and beneficiaries.
There are well defined legal requirements
regarding wills which relate to such matters as the capacity to make a will,
execution, restrictions upon the disposal of property by will and revocation.
These requirements, which are beyond the scope of this discussion, are a direct
concern you should present to your lawyer.
A will that is to be successfully probated and
made to meet your needs and wishes, must first be thought out carefully by you.
Although you can prepare your own will, an attorney can help fulfill your
intentions and guide you in making the best decisions. Be sure to discuss fees
with the attorney so there is no misunderstanding at a later time.
Remember, your will can be changed at any time
you wish, as your assets, intentions or desired beneficiaries may change. Your
will is not made public while you are alive, since the will is not presented
for probate nor recorded before your death. The existence of a will does not
affect your right to dispose of your property during your lifetime.
Firstly, start by making a list of all your
assets. It is important to list how each asset is owned - individually,
jointly, in trust, etc. - since this will determine whether or not the
disposition of the property will be governed by the will, or by operation of
law. Joint property with right of survivorship, real property and motor
vehicles in the name of husband and wife pass automatically to the survivor.
Secondly, examine the beneficiary designations
in all life insurance policies, IRA, pension plans and similar documents. They
will not become part of your estate and therefore, be sure you have not
included their value to cover any expenses.
Thirdly, select an executor to administer the
will. It is the executor's duty to collect all the assets of the estate,
determine what claims are being made against the estate, file the necessary tax
returns and distribute the assets among the beneficiaries under the will. The
executor may be a beneficiary under the will, a member of your family, your
legal or financial advisor, a friend, a bank, trust department or business
associate. It is also advisable to name a contingent executor to act in case
your first selection dies before you, or, for any reason, is unable to serve as
If the will is complex, you may need to appoint
a trustee and/or guardian for some of the beneficiaries. A financial
institution may be the right trustee to appoint in this situation to handle the
many complex tax, accounting, investment and property management
To be effective, a will must be written, signed
by the testator and witnessed by at least two people, or the signature and
material provisions are in his/her handwriting. The latter is not recommended
because these wills , referred to as holographic wills, cannot be probated in
the Surrogate's Court but must be presented to the Superior Court.
Each witness must personally witness the
signing of the will. Witnesses do not have to read the will or know it's
contents. However, they must be told by the testator that it is his will, and
that he wants them to be witnesses to its execution.
While the law permits a beneficiary to witness
a will, it is recommended that a beneficiary-witness be used only when a
disinterested party is not available. In this way, possible future challenges
may be avoided.
NJ Statutes also allow the witnesses and
testator to sign the will in the presence of a Notary Public or attorney making
the will "self-proven". This relieves the witnesses from appearing in
the Surrogate's Court to prove their signature at the time of probate.
The will should be kept in a secure place such
as safe deposit box or fire proof strong box. But more importantly, your
executor should know where it can be found. It is a good idea to give a copy of
the will to your executor with a notation where the original will can be
If it is kept in a safe deposit box it can be
removed by the executor immediately following your death in the presence of an
employee of the bank upon proof that you are the proposed executor named in the
A will should be periodically reviewed and kept
current. Keeping it current is just as important as making one in the first
place. Certain changes in your life, such as marriage, birth of a child,
purchase or sale of property, change in your financial status, or changes in
various tax laws may warrant your making certain important revisions in your
will. Also, laws change from state to state (and country to country) so the
will should be updated to take the local laws into account.
There are two ways to change your will: prepare
a new one or prepare a codicil. If there are many changes to make, it may be
less confusing to the executor to prepare a new will. If you have only minor
additions or deletions, a codicil, executed in the same formality as a will,
would be sufficient. Changing your will by drawing lines through items,
erasing, writing over or adding notations is improper and may destroy it as a
When a person dies leaving assets in his name
alone or in joint names with another person other than a spouse, it will be
necessary to present the will to the Surrogate for probate. The will is
presented to the Surrogate in the county wherein the decedent resided at the
time of death.
The executor will need to present the original
will, certified copy of death certificate and a list of names and addresses of
the closest next of kin to the Surrogate. Papers are prepared by the court and
signed by the executor. The legal review of the documents by the surrogate is
the probate of the will. If all requirements are met, the will is admitted to
probate and certificates are issued to the executor. These certificates allow
the executor to execute documents formerly done by the decedent such as
transfer automobiles, bank accounts, investment accounts, etc.
The original will is retained by the Surrogate
and filed and recorded in the Surrogate's Court. The will becomes a public
record and is listed in the general index.
Few persons expect to die when they do, and
therefore, relatively few leave their affairs in perfect order. Those who
administer an estate and take care of what is left often find themselves
without necessary information. To facilitate their job, it is advisable to give
your personal representative or your attorney a letter of last instruction
which is separate and apart from your will. This letter should contain the
- Name and address of those to be notified at
death and relationships of family members.
- Instruction as to burial and funeral
including any prepayments of funeral expenses.
- Location of birth, baptismal and marriage
certificates as well as social security card, citizenship papers, armed forces
discharge papers and titles to automobiles.
- Location of safe deposit box and where keys
- List of insurance policies and where they can
- List of stocks, bonds, securities, savings
accounts, credit union accounts, etc.
- Statement of all real property owned by you
with location of deeds, mortgages, abstracts and insurance policies for real
- Location of income tax returns for previous
- Receipted bills and cancelled checks for
previous five years.
- List of any gifts made and information needed
for estate tax.
- WHAT IS A WILL?
A will is a legally enforceable written document directing which belongings and
property go to whom. It also transfers ownership of real and personal property
when the maker of the will passes away.
- DO I NEED A WILL?
Yes--if you want your assets to be distributed according to your wishes rather
than by statute. Also, you get to pick the executor.
- WHAT IF THE WITNESSES DIE OR CAN NOT BE
A minimum of at least two witnesses is required to witness a will. You may,
however, have additional witnesses. This would help insure that at least one
witness would be available in the event of the testator's death. If one witness
dies or can not be located you need do nothing. However, if no witnesses to the
will are living someone who can identify the signatures of the two of the
witnesses must come forth. If all witnesses die or cannot be located, it is
advisable to prepare a new will
- CAN THIS PROBLEM BE AVOIDED?
Yes, simply have your will made self-proven at the time of signing which means
to have a notary or attorney attest that they saw the testator and the
witnesses sign the will and then witnesses will not be required to prove the
- CAN A WILL SAVE MONEY?
Yes, a will can eliminate the requirement of a bond which will reduce
administration expenses and it could permit your estate to take advantage of
- CAN I PREPARE MY OWN WILL?
Yes, but without professional guidance and advice it may not be legally
sufficient to be admitted to probate. In addition, self prepared hand written
"holographic" wills can only be admitted to probate after a costly
time consuming formal Superior Court hearing.
- CAN I NAME MORE THAN ONE EXECUTOR?
Yes, you can name two or more executors to serve at the same time or alternate
executors to serve in the event the first named executor dies or is unable to
- WHAT EFFECT DOES A WILL HAVE ON REAL ESTATE
OWNED JOINTLY BY HUSBAND AND WIFE?
Real estate owned jointly by husband and wife in the form of ownership legally
known as "tenancy by the entirety" is not controlled by the will of
the spouse who dies first. Absolute ownership of the property will pass to the
surviving spouse who has rights of survivorship, regardless of what the will
- WHAT ABOUT JOINT BANK ACCOUNTS OR
CERTIFICATES OF DEPOSIT?
Accounts held jointly may be owned with right of survivorship and if you want
the account to pass outside the estate when one owner dies, make sure you set
the account up that way.
- DOES A DIVORCE REVOKE THE ENTIRE
A divorce operates as revocation of any bequest made to your former spouse or
any appointment of your former spouse as executor, but in all other respects
the will is still effective.
- DO ALL STATES HAVE THE SAME PROBATE
No, although New Jersey is one of several states to enact the Uniform Probate
Code, most states have their own probate laws. It is a good idea to have your
will reviewed when you move to another state.
- IF BOTH PARENTS DIE LEAVING CHILDREN UNDER
18 YEARS OF AGE AND THEY HAVE NO WILL WHO SELECTS THE GUARDIAN?
Application is made to the Surrogate who usually appoints a person from among
the next of kin of the minor.
A Guardian for a minor can be named in a will
or the Surrogate can appoint a guardian if a minor receives an inheritance or
proceeds from a lawsuit.
Normally, the money is deposited in the
Surrogate Court Intermingled Account and held until the minor reaches the age
of 18 years.
As an alternative, the Guardian could post a
bond and invest the monies themselves on behalf of the minor with court
A Power of Attorney is a written document in
which another adult person is authorized to act on your behalf regarding real
property, bank accounts and other financial and legal matters.
It is generally used when someone is unable for
some physical or mental reason to carry out his or her affairs. With this
instrument, a spouse, friend or family member, called an Agent, can act on
behalf of you, the Principal.
There are generally two kinds of Power of
Attorney: limited and general. The limited power of attorney gives a person
authority to act for a specific purpose. With a general power of attorney the
agent has the authority to act on anything and everything for the principal if
he or she becomes disabled or mentally incompetent. Most general powers of
attorney will have a provision that will allow the agent to act even in the
event of the disability of the principal. A power of attorney ends at the death
of the principal.
The intestate share of decedent’s surviving spouse or domestic partner is:
a. The entire intestate estate if:
(1) No descendant or parent of the decedent survives the decedent; or
(2) All of the decedent’s surviving descendants are also descendants of the surviving spouse or domestic partner and there is no other descendant of the surviving spouse or domestic partner who survives the decedent;
b. The first 25% of the intestate estate, but not less than $50,000.00 nor more than $200,000.00, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent
c) The first 25% of the intestate estate, but not less than $50,000.00 nor more than $200,000.00 plus one-half of the balance of the intestate estate:
(1) If all of the decedent’s surviving descendants are also descendants of the surviving spouse or domestic partner and the surviving spouse or domestic partner has one or more surviving descendants who are not descendants of the decedent; or
(2) If one or more of the decedent’s surviving descendants is not a descendant of the surviving spouse or domestic partner.
Any part of the intestate estate not passing to the decedent’s surviving spouse or domestic partner or the entire intestate estate if there is no surviving spouse or domestic partner, passes in the following order to the individuals designated below who survive the decedent:
a. To the decedent’s descendants by representation;
b. If there are no surviving descendants, to the decedent’s parents equally if both survive, or to the surviving parent;
c. If there is no surviving descendants or parent, to the descendants of the decedent’s parents or either of them by representation;
d. If there is no surviving descendant, parent or descendant of a parent, but the decedent is survived by one or more grandparents:
(1) half of the estate passes to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the decedent’s maternal relatives in the same manner; but if there is none the entire estate passes to the decedent’s relatives on the other side in the same manner as the half.
e. If there is no surviving descendant, parent, descendant of a parent, or grandparent, but the decedent 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 decedent, but if of unequal degree those of more remote degree take by representation.
If there are no surviving descendants of grandparents, then the decedent’s step-children or their descendants by representation.
- Administrator: (also known as Personal
Representative) Person or institution appointed by the court to manage and
distribute the estate of a person who dies without a will.
- Beneficiary: Person named to receive
property or benefits.
- Codicil: An addition or supplement made
to change or add provisions to a will.
- Contingent beneficiary: Receiver of
property or benefits if first-named beneficiary dies before receiving all
- Contract: Legal enforceable
- Decedent: A deceased person.
- Devise: To give (or a gift of)
- Estate: Everything a person
- Executor: (also known as Personal
Representative) A person or institution named in the will to carry out the
provisions and directions of the will.
- Heirs: Those persons who are legally
entitled to receive a decedent's property.
- Issue: Children, grandchildren, great
grandchildren, etc. (lineal descendants)
- Intestate: A person who dies without
making a valid will.
- Legatee: A person who receives personal
property under a will.
- Levy: To collect by assessment.
- Lien: A charge upon property, real or
personal, for the satisfaction of a debt.
- Personal property: Intangible property
such as stocks, bonds, or bank accounts and tangible property such as
furniture, automobiles and jewelry.
- Probate: Official proof of the
genuineness of a will.
- Real property: Land and
- Surrogate: A judicial officer who has
jurisdiction over the probate of wills.
- Tenants in common: Two or more persons
owning individual interests in property.
- Testator: The person who makes a
- Trust: Property owned and managed by
one person for the benefit of another person.
- Trustee: Person or institution holding
property in trust.
- Waiver: A legal instrument
relinquishing a right or lien.
- Will: A legal declaration of the manner
in which a person wishes his estate divided after death.
- Witness: Person who observes the
signing of a will and also attests to the signatures.
- Hunterdon County Surrogate's Court: 908-788-1156
- Hunterdon County Clerk, to obtain
copies of deeds and mortgages: 908-788-1221
- Hunterdon County Historical Society: 908-782-1091
- Hunterdon County Office on Aging: 908-788-1361
- Township of Raritan, Registrar of Vital
Statistics, to obtain death certificates: 908-806-6100
- New Jersey Department of Health, Division
of Vital Statistics, to obtain birth, death and marriage records: 609-292-4087
- Internal Revenue Service, to obtain
estate ID #: 1-800-829-1040
- State of New Jersey, Transfer Inheritance
Tax Bureau: 609-292-5033/5035
- Social Security Administration: 1-800-772-1213