How do I avoid probate? This is a common question I hear from clients. The answer is, “It depends.” It depends on whether or not the client owns real estate in another state.
For instance, if Mrs. Smith dies a resident of New Jersey but owns real estate in another state, say Florida, then Mrs. Smith’s executor would have to submit her Will to probate in New Jersey, the state of her primary residence, and Florida, the state in which she owns a second home.
Real estate is literally what states are made of. New Jersey is hundreds of miles of real estate. Florida is hundreds of miles of real estate. Without real estate, a state would not exist. So, a legal proceeding in a New Jersey state court cannot control real estate in Florida. For this reason, your Will would have to be probated in New Jersey and Florida if you died a resident of New Jersey but own real estate in Florida.
In some states, probate is quite difficult. For instance, in Florida, the probate process is difficult. The executor frequently has to retain the services of an attorney in order to complete the probate process. Other states, such as California, have complicated probate processes.
In New Jersey, the process of submitting a Will to probate is exceedingly easy and inexpensive. I often tell people that it takes longer to explain what “probating a Will” is than it takes to probate a Will.
Probating a Will is the process through which a Will is proven to be a valid Will. I have been drafting Wills for decades and assisting clients with the process of estate administration for just as long. I have never seen an instance in which an attorney drafted a Will for a client and the client signed the Will in the attorney’s presence where the Will was not accepted as a valid Will.
Submitting a Will to probate involves taking the original Will, the original death certificate, and a check for about $150 to the surrogate (an elected official) for the county in which the decedent lived when she died. Once at the surrogate’s office, the executor completes a one-page estate information sheet that I would estimate takes fifteen minutes to complete. The probate clerk at the surrogate’s office enters the information from the estate information sheet into the surrogate’s computer system, and viola, the Will has been submitted to probate. Total elapsed time to probate a Will, not including drive time to the surrogate’s office, is approximately fifteen to thirty minutes.
Is that something that you need to avoid? No. Not in my opinion. And here’s the thing. The common solution for avoiding probate is a revocable living trust. I draft revocable living trusts frequently because some of my clients own real estate in another state, but a revocable living trust does not necessarily eliminate probate. More often, a revocable living trust limits the number of assets that need to pass through the probate process.
When the probate process is difficult, limiting the amount of the decedent’s assets that pass through probate is a worthwhile endeavor. When probate is simple, limiting the amount of assets that pass through probate is of no value at all.
In New Jersey, it doesn’t matter if the decedent’s assets are worth $50,000 or $50,000,000, the process of probating the Will is exactly as I described above. In other states, the value of the estate matters greatly because some states charge fees based upon the value of the estate, but not New Jersey.
So, if you think you need to avoid probate simply because you heard a TV personality or a neighbor or a website say you should avoid probate, you need to realize that the person either may be telling you about probate in another state or the person may have an agenda and something they are trying to sell you. All I can tell you is that the process of probating a Will in New Jersey is very simple and very inexpensive.