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Should I Fear Probate?

Probate creates a public record of the will. It’s the process after death whereby a will is presented to the probate court to be recognized as valid and the last will of the decedent—the person who died.

NJ 101.5’s recent article, “What probate means for your estate,” explains that the probate court will grant “letters testamentary” to the executor named in the will. This gives the executor the authority to administer the decedent’s estate.

If a loved one who has passed did his or her homework in advance of death and properly prepared and executed a self-proving will, probate can be a pretty easy process. The individual designated as the will’s executor takes the original will, along with the decedent’s original death certificate, to the probate court of the county in which the decedent resided at the time of death.

The will cannot be admitted to probate until a set time, such as ten days from the death of the decedent, but the probate papers typically can be filed during that time. The probate court can assist the executor with completing the necessary forms, or an estate planning attorney can help. There will be court fees.

Once the will is probated, it’s a public document and available for anyone to see and get a copy. Because of this, some folks chose to create revocable trusts and pour over their testamentary assets into their trusts. These documents aren’t recorded with the court.

In the event there’s no will or if there are issues that arise with the will, the process becomes more complicated.

The testator will typically waive the requirement that the fiduciary posts a bond in his or her will. If there’s no will or if the will fails to include such a waiver, a bond has to be posted, and the judge will set the amount of the bond based on the size of the estate.

If the will is not self-proving, the witnesses must be found and brought to the probate court to testify to the execution of the will by the testator.

If there is no will, letters of administration are usually issued to a spouse, or if none, they are issued to adult children. If there are no adult children, then other relatives are selected, according to state statutes. The decedent’s estate is administered as intestate by the statutes.

Reference: NJ 101.5 (May 27, 2016) “What probate means for your estate”

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