11) What are the Surrogate certificates used for?
They will show evidence of the authority of the personal representative to act. They are necessary to accomplish certain tasks such as transferring real estate, stock accessing or closing bank accounts, etc.
12) Am I entitled to compensation as a personal representative?
The answer is yes. The New Jersey Legislature has set commissions based on corpus and income amounts that are allowable on all Estates, Trusts and Guardianship matters. You are entitled to 5% on all corpus not to exceed $200,000.00, 3.5% in excess of $200,000.00 up to $1,000,000.00, and 2% over $1,000,000.00.
13) What is the personal representative required to do?
They are required to collect and safeguard all of the assets of the Estate, pay the debts and taxes and turnover the balance of the Estate funds to the beneficiaries.
14) Am I, as a personal representative, protected against creditors of the Estate?
Creditors must come forward and pursue their claims within nine months of the date of the decedent's death. If a claim is not presented within the nine month period, the personal representative shall not be liable to the creditor with respect to any assets he or she may have delivered or paid in satisfaction of any lawful claims or shares due beneficiaries of the Estate before the presentation of the claim.
15) Is it necessary to send copies of the Will to the beneficiaries?
The personal representative is required, within sixty days of probating the Will or taking out letters of administration, to notify the heirs at law, next of kin and beneficiaries in writing that the Will is probated, the date and place of the probate, the name and address of the personal representative and a statement that a copy of the Will shall be furnished upon request. A proof of mailing would be filed in the Surrogate's office evidencing the mailing.
16) What is done with a safe deposit box?
The personal representative is permitted to remove the original Will and deeds to a cemetery plot from a safety deposit box. There is no longer a requirement to have a representative from the New Jersey Inheritance Tax Bureau present. Any other items present in the box can be removed only on the presentation of a Surrogate's certificate or if it is jointly owned then the joint owner can access and remove the items.
17) Where does the personal representative obtain the funds to pay the debts?
Normally, the representative of the Estate will open and maintain an Estate checking account to pay bills and debts of the Estate. Assets in the decedent's name alone are usually liquidated and placed into the checking account. Remember that existing accounts are allowed to be accessed up to one-half of their value pending the tax waivers being received.
18) How soon must state inheritance taxes be paid?
New Jersey inheritance tax returns must be filed and the tax paid within eight months after the date of death to avoid interest. While an extension to file may be granted, the tax must still be paid initially.
19) Are unpaid inheritance taxes a lien on real and personal property?
The answer is yes. In order to sell real estate, tax waivers will be necessary from the New Jersey Inheritance Tax Bureau. The waiver is filed with the County Clerk in the county where the land is located. Land held by husband and wife as tenants by the entirety need not be reported and may be transferred without a waiver. Personal property such as bank accounts that do not meet the affidavit of waiver or L-8 formula will not be fully released until the appropriate waivers are received.
20) How can I change my Will?
Either by a codicil, which is an addition or supplement made to change or add provisions to your Will, or by a new Will. The codicil will republish the Will in all other respects. Remember that handwritten changes and markings made can invalidate the Will. The Surrogate will be unable to act and probate will need to be done in the Superior Court.
21) Can I disinherit my spouse, domestic partner, children or family under my Will?
The answer is yes; however, a surviving spouse or domestic partner may be able to file for an elective share against the Estate and if good cause is shown a disinherited child may also seek to recover a share of the Estate.
22) Do I need an attorney to prepare my Will or represent an estate?
The answer is no. However, it is strongly suggested that you seek the services of an attorney to prepare your Will as defects can cause more problems than the initial cost to have the Will properly drafted.
23) Can the probate process be stopped in the Surrogate's office?
The answer is yes; before a probate is begun or completed, a caveat can be filed that restricts or prohibits the Surrogate from taking any other action on the probate. The process would then have to proceed in the Superior Court by Verified Complaint and Order to Show Cause for a hearing and determination.
24) Can I challenge a probate after it is completed?
The answer is yes. New Jersey Court rules set forth the time frame in which an application can be made to set aside a probate. The time differs on the residency of the person making the application. The complaint must be made in the Superior Court, Chancery