“I want to make it as easy as possible for my family after I die. What should I do? How do I avoid probate? I heard probate was complicated.” These are statements that I hear every day from clients.
After someone dies, managing their affairs is “estate administration,” but some people refer to the process as “probate.” The act of submitting a last will and testament to probate is one small part of estate administration. In New Jersey, probate is extremely simple and inexpensive.
Probate is proving the validity of the Will. Under law, Wills are presumed to be valid, so proving that a given Will is valid is, by law, presumed to be the case. If an attorney drafted your Will, it is highly likely that the Will is valid.
To prove the validity of the Will, the individual who is nominated as the executor in the Will brings the original Will and an original death certificate to the surrogate for the county in which the decedent was domiciled. If Mrs. Smith dies a resident of Wall Township, then Mrs. Smith’s son, who is named as the executor in her Will, would bring her Will and death certificate to the Monmouth County Surrogate.
A surrogate is an elected official who serves for a term of five years. Every county in New Jersey has a surrogate. Once elected, one of the primary jobs that a surrogate performs is admitting Wills to probate, assessing the validity of Wills. To prove the validity, the surrogate has the nominated executor complete a very brief questionnaire that asks basic questions about the decedent and her family. Completing the questionnaire takes approximately twenty minutes.
A clerk at the surrogate’s office will examine the Will, a process that takes no more than a couple of minutes. As stated, if an attorney drafted the Will, it is highly likely that the Will is a valid Will. The fee to probate a Will is about $150—the price varies given the length of the Will.
Once admitted to probate, the surrogate issues Letters Testamentary and Executor Short Certificates to the executor. These documents are proof that the surrogate admitted the Will to probate, and that the executor has authority to deal with the assets of the decedent. When the executor goes to the bank in which the decedent has a bank account, the executor would present a short certificate to the bank in order to prove that the executor has authority to access the bank account.
Without counting the time, it takes to drive to the surrogate’s office, the process of submitting a Will to probate takes about thirty minutes and costs about $150. The process is so simple that there is no reason to plan to avoid the process. In some states, such as Florida and California, the process of submitting a Will to probate is overly complicated and costly, so it is worth avoiding. This is not the case in New Jersey.
So, if probate is easy, what can a person do to make the administration of their estate easier? What makes an estate complicated is having different assets spread out over many accounts. For instance, if Mrs. Smith dies owning stock in twenty companies—some stocks in certificate form, some stocks in book entry form—then the administration of her estate is going to be more difficult. If Mrs. Smith’s house is cluttered with a life’s worth of stuff, her estate will be more difficult to administer.
I have served as the executor of many estates. More people than you think have retained every item their lives have generated. I have cleaned out houses no bigger than 1,000 square feet that require six 30-yard Dumpsters to remove the “stuff” in the house.
The simpler your affairs, the easier it will be for your executor to administer your estate. If you dispose of things that you have not used in several years, if you consolidate your accounts—then administering your estate is going to be easier.