ESTATE & TRUST ADMINISTRATION Q&As

What is probate?

Answer: Probate is the legal process of validating a will, having an Executor appointed and distributing assets. It can sometimes be avoided by using living trusts, joint ownership, or beneficiary designations.  But sometimes there are things that surface (refunds of long term care insurance premiums or assisted living residence contracts, income tax refunds, the need for legal action for medical malpractice) that will require you to open an estate.

Where do I go for probate?

In New Jersey, the Surrogate’s office handles this process. In Pennsylvania, this office is called the Register of Wills / Orphan’s Court.

How difficult is probate in NJ?

Answer:  It’s important to understand the difference between probate and estate administration.  NJ is a very probate-friendly state and the mechanics of the process are relatively simple: in addition to the Petition (called the Information Sheet, found on most Surrogate Court websites), you will need a certified copy of the death certificate, the Original Last Will, filing fee and your photo identification.

My dad died without a Will. But when I went to court to get appointed as Administrator they told me I needed to be ‘bonded’. What’s that?

A surety bond protects the beneficiaries of the estate from the Administrator running off with the money and/or not carrying out their responsibilities properly.   You need to apply for this with a surety bond company and give the approximate value of the estate, your current work and income and your social security number so the bond company can run your credit.  If approved, you need to file proof of the bond with the Court.   If there’s more than one person who could qualify as Administrator    

My family is being super impatient – everyone keeps asking me why its taking so long and when they’re going to get their money.

Contrary to what most people think or say, estate and trust administrations aren’t quick or easy – you can expect the timeline to be anywhere from 6 mos to 3 years.

There’s a lot of paper pushing involved to even get appointed by the Court, there may be inheritance and income taxes to deal with, creditors to notify and debts to pay, assets to be sold, etc.  Most creditor periods span at least 6 mos or more so you don’t want to be giving away anything before then. And when you do, be absolutely sure you do what your state requires: in NJ, Executors and Administrators must run a child support search for anyone getting $2K+; if there’s a judgment, you are on the hook to pay from that beneficiary’s share. A final accounting, while not always required, is highly recommended.

BTW: the first recommended rule of thumb is to talk with an attorney to confirm the steps.  If necessary, retain the attorney to act as ‘bad guy’ giving the real real status reports to make beneficiaries understand. 

I just got a letter from the attorney who represents my uncle as Executor of my grandmother’s estate asking me to sign a Refunding Bond and Release in order to get my inheritance. Does that sound fishy ?

Actually, requesting a beneficiary to sign a Release is standard operating procedure in New Jersey. The Release should include the following:  the full or partial amount that you are receiving (sometimes called your ‘distribution’ or ‘distributive share’, that you are waiving all liability of the Executor or Administrator, and that you agree to return or ‘refund’ a proportionate amount of your inheritance in the even has

That being said, if you are being asked to sign a Release to receive an inheritance and either (i) you’ve never received any other prior notice about the estate and/or (ii) if there’s no accounting being provided that shows the estate’s assets and expenses and how your share was calculated, I’d push back a bit and ask for more (or talk to an attorney who can respond on your behalf and make the ask).

Is it true that you can take a commission for handling an estate or trust? Should I consider it?