Hoboken Family Law Blog
The coronavirus pandemic has created massive problems for people in all walks of life. That includes people who have lost someone and now must, in addition to everything else, undertake the process of probate, which has itself been rendered much more complicated by the new COVID-19-based safety requirements. To make sure you are handling the probate process correctly, even in this time of pandemic, look to a skilled Hoboken probate attorney to guide the way.
There’s some very good news for people in nearby Morris County. The Surrogate’s Office there recently created a set of “newly designed COVID-19 compliant probate rooms” and, in conjunction with the opening of those spaces, began accepting appointments for in-person probate in early October, insidernj.com reported. The county has also set up a “fully remote” probate option, which is scheduled to become available in November, according to insidernj.com’s report.
Here in Hudson County, in-person applications remain “suspended… until further notice.” The Hudson County Surrogate’s Office is offering services via telephone, fax, and regular mail, according to the Surrogate’s website.
When it comes to probate, you probably have lots of questions, even outside of the pandemic’s effects. Here is a quick “Q and A” to give you a bit more clarity about probate.
Q: What exactly is probate?
A: Generally speaking, probate — whether in New Jersey or elsewhere — is the legal process of distributing a deceased person’s assets after he/she dies, and making sure that those assets are distributed to the correct people.
Q: So… distributing assets according to what a will says, right?
A: Not always. Distributing assets according to a valid will is one probate situation, but it is not the only one. When a person dies with a will, that will must be presented to the Surrogate’s Court for the county where the deceased person lived. The court will analyze the will and determine if it is valid in New Jersey. If it is, then the deceased’s estate is considered to be a “testate estate” and the deceased’s assets will be distributed in the way that the will dictated.
However, even if a person dies in New Jersey with an invalid will or with no will at all, his/her assets are still distributed through probate; they just go through the process for “intestate estates.”
Q: How does the intestate estate process work?
A: By the terms of the state statutes. There is a special set of New Jersey statutes that dictate who gets the deceased’s wealth if the deceased died with no valid will. These laws generally will start by looking for a surviving spouse and/or surviving children.
For example, if you die with no will and you have children but no surviving spouse, your children get everything. If you have a surviving spouse and children all of whom are the descendants of you and your surviving spouse, your spouse gets everything. If you have a surviving spouse and children from other relationships/marriages, then your spouse gets a portion and your children from those other relationships get a portion.
If you have no surviving children or spouse, then the law looks to parents and siblings, then continues outward from there until a class of heir is found in which one or more people are living.
Q: Is a deceased person’s wealth always distributed through probate?
A: No. There are certain types of assets that may pass outside the probate process. Any asset that has a valid “transfer on death” or death beneficiary designation on it passes outside probate. For example, a life insurance policy generally has a death beneficiary on it and the proceeds (the “death benefit”) of that policy generally pass to the beneficiary without requiring any probate action. In New Jersey, stocks, bonds and brokerage accounts may also be held in “transfer on death” form, and pass outside probate as long there is a valid beneficiary named.
Q: Is that the only way assets can avoid probate in New Jersey?
A: No. There is also something called a revocable living trust that may help people who specifically want to avoid the probate process. This is a type of estate planning tool in which the creators (called the “trustors”) set up the trust during their lifetimes, transfer assets into the trust during their lifetimes and maintain management control of (including the power to sell) those trust assets during their lifetimes, assuming they have named themselves as initial trustees. The trust document also contains a section in which the trust’s creators state how their assets should be distributed after they die.
Then, after the creators have passed, the successor trustee (who is also named in the trust document) begins the process of distributing the assets in accordance with what the creators wrote in the trust document. In this way, all assets held by the trust can pass outside probate as long as they were properly transferred into the trust and there was a valid beneficiary named within the trust document.
These are just a few commonly asked questions about probate. Chances are, you probably have many more about probate and what it would mean for your family. Count on knowledgeable estate planning attorney Frank Marciano to provide you with the customized answers, in clear and easy-to-understand language, you need in response to your specific situation. To set up a consultation and find out how this office can help you, contact us online or call 201.656.1000.