Does every last will and testament need to be submitted to probate? Clients often come to me wondering whether or not they have to submit the last will and testament of a deceased loved relative to probate. They are also often wondering what probate is. Most believe that the probate process is a very complicated, very costly, government intrusion into the affairs of their loved one.
The truth of the matter is, the process of submitting a Will to probate in New Jersey is extremely simple and costs very little money. While this is not the case in some states—for instance, in Florida and California, the process of probate can be very costly and very complicated—New Jersey has a very simple probate process.
I have never tried to time how long it takes to probate a Will in New Jersey, but I would estimate that the process takes between twenty and thirty minutes. Probate in New Jersey costs about $150 for the average length Will. The probate fee is based upon the length of the Will, not the value of the estate, so a Will fifteen pages long for an estate worth $100,000 would cost more to probate than a Will two pages long for an estate worth $1,000,000.
Once again, this is not the case in some other states. In some states, the cost of probate is based upon the value of the estate, so the more valuable the estate, the more money you will pay to probate the Will. For this reason, avoiding probate in some states is a worthwhile endeavor. In New Jersey, avoiding probate is not a worthwhile endeavor.
The surrogate of the county in which the decedent died domiciled handles the probate of that decedent’s Will. A surrogate is an elected official and serves for a term of five years.
Sometimes, the surrogate’s office is referred to as Surrogate’s Court, but quite frankly, there is no court room over which the surrogate of a given county resides. If you were to walk into any surrogate’s office, you would think it looks like any other office.
The process of probating a Will is designed to prove the validity of the Will and to appoint officially the executor of the estate. The surrogate, or her clerks, will examine the Will to ensure that it was signed (or executed) in an appropriate manner.
Most Wills are self-proving Wills, meaning that the Will is signed by the testator, whose signature was witnessed by two witnesses, all of whose signatures were notarized. When a Will is self-proving, the executor does not have to prove the genuineness of the testator’s signature and the Will can be admitted without any proofs whatsoever.
When a person states in their Will something such as “I appoint my spouse to serve as the executor of my estate,” that person is simply nominating their spouse to serve as executor. Not until the Will is submitted to probate before the surrogate of the appropriate county and the surrogate appoints the spouse as executor is the spouse officially the executor of the estate.
With all of this said, not all Wills have to be admitted to probate. Typically, when the first spouse dies, there is no need to probate his Will. Most couples own all of their assets jointly or name the other spouse as the beneficiary of his accounts. So, when one spouse dies, all of his assets simply pass to the surviving spouse.
In most cases, you only need to probate the decedent’s Will if the decedent owned probate assets, for instance, a bank account in his name alone without a beneficiary designation. If there are no probate assets, then you do not have to probate the Will.