Every week a client will ask me, “How can I avoid probate?” Clients believe that probate is a very expensive process and that it involves lawyers and the court system. As I have explained to clients time-and-time again, their perception of the probate process is far worse than the reality of the probate process.
New Jersey is not known for being an inexpensive state. New Jersey has one of the highest costs of living in the nation. Our state is famous for its high taxes. We are one of two states in the nation that has two death taxes.
Ironically, though, the cost of submitting a Will to probate in our state is quite low, which is not the case in other states. Florida, for instance, which has a much lower cost of living than New Jersey and which has no state death taxes, has a far more complicated and costly probate process than New Jersey.
In order to discuss probate, though, one must understand what “probate” means. The act of probate is the act of proving the validity of a Will. In other words, it is the act of proving that the last will and testament of the decedent is the valid last will and testament of the decedent.
A Will must be signed with a certain level of formality. Most Wills signed in New Jersey are self-proving, which means that no witness to the signing of the Will must testify as to the decedent’s signing the Will.
In order to be self-proving, the Will must have been signed by the decedent in the presence of two witnesses. Both witnesses must have signed the Will in the presence of each other and the decedent’s and witness’s signatures must be notarized. Finally, the Will must contain certain language found in a New Jersey statute that says the decedent was over the age of eighteen, competent, and not being unduly influenced at the time he signed the Will.
A Will is still a formal Will if the decedent merely signed the Will in the presence of two witnesses and the witnesses sign the Will, but it would not be self-proving if their signatures weren’t notarized and the statutory language was missing. If a Will is not self-proving, then a witness to the signing must submit an affidavit validating the signing.
A Will could also be a holographic Will if the decedent wrote the Will in his own handwriting and signed the Will.
Finally, a Will that fails to meet any of the above-referenced requirements may still be a Will if it is a writing that can be proven to be a document that the decedent intended to be his last will and testament. Unsigned documents have been admitted to probate as writings that the decedent intended to be his Will.
Proving that the Will is a valid Will–meaning that the Will satisfies one of the criterion outlined above–is the act of submitting a Will to probate. Since most Wills are self-proving and were written by attorneys, the act of submitting a Will to probate is very simple and takes about thirty minutes.
You submit a Will to probate before the Surrogate of the county in which the decedent died domiciled. So, for instance, if the decedent lived in Monmouth County, then you probate his Will before the Monmouth County Surrogate.
The act of probating the average Will costs about $150. While the Surrogate technically is a judge and the Surrogate’s offices technically are a court, your experience with a surrogate will be more like visiting an office building than a court. The act of probating involves completing some very simple forms, which a probate clerk will help you complete.
In short, there is no reason to avoid probate in New Jersey. The work you would have to do to avoid probate is far more than the work involved in submitting a Will to probate.
Probate gets a lot of attention — usually because people remember the bad experiences. But it isn’t always something to avoid at all costs. What matters most is choosing the approach that fits your family and your planning goals, not just chasing a buzzword.