Do I Need To Probate the Will?

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.

Miller Trusts Are Here

The big day is here. The New Jersey Medicaid program has changed effective December 1st. I wrote about this change several months ago, and now the day is here. The State notified all residences on Wednesday, November 26th, that a highly anticipated change to the Medicaid program would be effective December 1st.

There are many different programs of Medicaid in New Jersey, but as an elder law attorney, I work with two of those programs. One program is called the “Medically Needy program” and the other is called the “Medicaid Only program.”

The Medicaid Only program will pay for long-term care in a nursing home, in an assisted living residence, or at home, such as a home health aide. The Medically Needy program will only pay for care in a nursing home.

The Medicaid Only program has an income cap, set at 300% of the federal benefit rate for Supplemental Security Income. In 2014, the income cap is $2,163.

What this means is, if an applicant’s income exceeds $2,163 a month, even by one penny, he will never qualify for the Medicaid Only program. From a practical standpoint, this means that if the applicant is residing at home or in an assisted living residence, he will not qualify for Medicaid benefits.

The Medically Needy program does not have an income cap; however, as stated, the Medically Needy program will only pay for care in a nursing facility. So, while the income cap is not a problem, telling someone who is residing at home or in an assisted living residence that he has to go live in a nursing home in order to qualify for Medicaid does create a problem.

Well, effective December 1st, this has all changed. New Jersey is eliminating the Medically Needy program, leaving only one program of long-term care Medicaid.

This new program will pay for long-term care in a nursing home, an assisted living residence, and at home. The program has no income cap; however, if the applicant’s income exceeds $2,163, a figure that is adjusted annually, then the income above that level must be placed in a trust.

The trust is known as a Miller Trust, after a very famous case that discussed the workings of the trust, or a Qualified Income Trust. The bottom line is, whatever you might call it, the practical effect is that a lot more people who were foreclosed from qualifying for long-term Medicaid at home or in assisted living residence because their income exceeded the Medicaid Only program’s income cap now have the option of qualifying for benefits.

A Miller Trust is somewhat tricky. For those of you who aren’t experienced elder law practitioners, the trust would probably seem very confusing and very scary. But the fact of the matter is, this change to the law and the trust open up tremendous opportunities for New Jersey’s elderly residents.

If you are interested in learning more about New Jersey elder law, I have written a book on the subject entitled New Jersey Elder Law: A Resource and Planning Guide. ALM Media Properties, LLC, publishes my book. ALM is the publisher of the New Jersey Law Journal, New Jersey’s premier legal periodical. You can purchase my book by visiting