Losing someone you love is never easy, and dealing with their will can feel confusing and overwhelming. You might be wondering, “What do I do with a will after someone dies?” It’s okay to feel unsure during this time.
We’re here to guide you through the first steps of handling a will and settling an estate. Let’s take it one step at a time together.
Locate the Will
First, check the deceased person’s home. Look in file cabinets, safes, or desks for the will. It may also be stored in a safe deposit box at a bank. If so, you may need to present a copy of the death certificate and proof that you are named as executor to access it.
Sometimes an attorney holds onto the will for safekeeping. Contact any lawyer who worked with our loved one on estate planning. Finding this legal document quickly allows us to start taking the next steps toward verifying its validity.
Verify the Validity of the Will
A will in New Jersey is generally valid if the testator was at least 18 years old and of sound mind, and the document was signed voluntarily without coercion. For standard wills, two witnesses must also sign in the testator’s presence. Importantly, New Jersey recognizes handwritten (holographic) wills as valid even without witnesses, provided the signature and all material parts are in the testator’s handwriting. If there’s any doubt about authenticity, consulting an attorney is highly recommended. See more on will requirements from the New Jersey Courts and N.J. Stat. §3B:3-2.
Initiate the Probate Process
Start the probate process quickly to ensure the estate is handled properly, read on for key steps.
Filing the will with the probate court
You must file the will with the probate court in the county where the deceased person lived. This step officially starts the probate process and gets recorded by the court.
A certified copy of the death certificate is also needed, along with any required forms and fees. Once filed, a judge reviews it to confirm its validity before moving forward with other steps in estate administration.
Obtaining court approval for the executor
After filing the will, the court reviews it to confirm its validity. Next, you need approval for the executor named in the document. The probate court judge ensures this person can act on behalf of the estate.
The executor must prove they can handle their duties responsibly. They may need to provide an affidavit or take an oath. Once approved, they get legal authority to manage bank accounts, pay debts, and distribute assets according to the will’s terms.
An executor acts as a trusted guide through a loved one’s estate matters.
Notify Beneficiaries and Creditors
You must inform the beneficiaries named in the will about their inheritance. This includes sharing details of what they may receive. Clear communication helps avoid confusion or disputes later.
Creditors also need notice of the person’s death. They have a set period to claim unpaid debts from the estate. Giving proper notice ensures you handle all claims before moving to distribute assets.
Next, focus on managing and settling the estate’s finances properly.
Manage and Distribute the Estate
Handle debts, taxes, and any other outstanding matters first. Then, focus on dividing the assets as outlined in the will.
Settle debts and taxes
The executor must pay outstanding debts, funeral expenses, and taxes before distributing assets. Final federal and New Jersey state tax returns are required, and if the estate exceeds certain values, estate or inheritance tax filings may apply. Executors should not make final distributions until tax clearance certificates are obtained from the NJ Division of Taxation, confirming all debts and taxes are resolved.
Life insurance proceeds and death benefits from Social Security typically go directly to named beneficiaries and are not subject to probate, but should still be coordinated as part of the estate process. If there are jointly owned assets or accounts with designated beneficiaries (like “payable on death”), these also generally transfer outside the will.
It’s also important that the executor gathers all beneficiaries’ current contact information for submission to the Surrogate’s Court as required, and that out-of-state executors check for any additional form or bond requirements. See guidance from the State of New Jersey Surrogate’s Court and Probate FAQs.
Distribute assets to beneficiaries
Follow the will’s instructions to transfer assets of the estate. This includes property, bank accounts, and personal items. The person named as executor ensures everything goes to the right beneficiaries.
Life insurance payouts and death benefits from Social Security might also be part of what gets distributed. If a surviving spouse or children are involved, they may receive specific shares based on New Jersey law.
Additional Suggestions for Executors in New Jersey
Even with a straightforward will, navigating estate administration can get complicated. Below are some extra considerations specifically relevant to probating an estate in New Jersey.
Understand Holographic Will Requirements
If the decedent left a handwritten (holographic) will, you’ll need to prove the document is entirely in their handwriting. New Jersey law accepts such wills without witnesses, but you may need:
- Affidavits from individuals familiar with the decedent’s handwriting
- Handwriting samples for comparison
- Legal assistance to prepare the documentation for the Surrogate’s Court
More details on this process are covered in N.J. Stat. § 3B:3-2.
Confirm All Taxes Are Paid Before Distributing Assets
New Jersey requires that all tax obligations tied to the estate be resolved before the executor makes any final distributions. This includes:
- Final income tax returns (state and federal)
- Estate or inheritance taxes, if applicable
- Property taxes owed on real estate owned by the decedent
To protect yourself as an executor, request tax waivers or a tax clearance certificate from the NJ Division of Taxation. Distributing assets without one can result in personal liability if unpaid taxes arise later.
Know Which Assets Avoid Probate
Not all property the decedent owned goes through probate. Some assets transfer directly to beneficiaries outside the will, such as:
- Jointly owned real property (with right of survivorship)
- Joint bank accounts
- Retirement accounts and IRAs with designated beneficiaries
- Life insurance policies with named beneficiaries
- Transfer-on-death (TOD) or payable-on-death (POD) accounts
Although these assets don’t require court oversight, it’s the executor’s responsibility to help coordinate and confirm that the proper beneficiaries receive them.
Be Mindful of Deadlines and Court Requirements
In New Jersey:
- Probate can begin 10 days after death.
- Creditors have 9 months to file claims against the estate.
- Executors may need to post a bond or complete additional filings, particularly if they live out of state.
Each county Surrogate’s Court may have its own local forms, preferences, or processing times, so it’s wise to check directly with the court where probate will be filed.
Conclusion
Losing someone is hard. Dealing with their will can feel overwhelming. By taking it step by step, you can handle the process calmly. From locating the will to distributing assets, each task is important and must be carried out according to the laws of New Jersey.
Our law firm can assist you with the entire probate process. If you’d like help, please click here to schedule a quick call: Schedule a Consultation
FAQs
1. What should you do first after a loved one dies and leaves a will?
After your loved one’s death, locate their last will and testament. Report the death to the county where the decedent lived, and obtain an original death certificate from the office of vital records.
2. Who handles settling a loved one’s estate?
The person named as the executor in the will is responsible for handling probate proceedings, managing legal affairs, and distributing assets according to its terms. If no executor is designated or if someone dies without a will, next of kin may need legal help.
3. Do you always need an attorney during estate administration?
An attorney can help if there are complex issues like unclear property ownership or disputes among beneficiaries. For smaller estates or straightforward cases, some people manage with less legal advice.
4. What happens if someone dies without leaving a will?
When a person dies without a last will and testament (intestacy), state laws decide how their remaining assets are distributed to surviving family members based on next of kin relationships.
5. How do you determine what an estate is worth?
To find out the value of an estate, list all property in it including real estate, bank accounts like joint accounts, investments, and personal belongings. Subtract debts owed by the deceased from this total.
6. Are there fees involved in probating an estate?
Yes, probate fees vary depending on factors like complexity of the estate or its value. Small estates might qualify for simplified processes like using a small estate affidavit which reduces costs significantly compared to full probate proceedings.
