How To Avoid Probate: Part 3

Welcome once again to our handy-dandy how-to guide for avoiding probate altogether. Please note that this is indeed the final part of the guide. If, however, you missed out on the first two sections, you can check out part 1 (here) or read part 2 (here). In the final section, we’ll discuss how you can go about getting around the probate process if you happen to have a small estate. If this applies to you, please read on!

Is The Estate Big Enough for Probate?

The truth is simple: if your estate is small enough, you might not even have to think about probate at all. Nearly every state now offers shortcuts, or in some cases, ways around probate altogether, for small estates.

Each state defines that term differently, so be sure and check the rules and regulations for your state. Also of note, because of the way these laws are written, some larger estates—most worth hundreds of thousands—are also eligible for special procedures that speed property to inheritors.

There are two basic shortcuts for small estates that we will discuss today.

Claiming Property with Affidavits

If the total amount of value for all of your stuff is below a certain number, anyone who inherits your personal property (that is, anything except for real estate) might be able to skip probate altogether. Please note, though, that the exact amount varies by state and can also vary quite a lot.

However, if an estate qualifies, any inheritor can make up a short document stating he or she is entitled by will or state law to a certain item of property. This paper (called an affidavit) is signed under oath. Then, when the institution or person holding the property (like a bank where the deceased had an account) receives the required documents (i.e. the affidavit and a signed copy of the death certificate), it can then release any monies or other property.

Simplified Court Procedures

The second option we’ll look at now is simplified court procedures. Again, these are defined by individual state laws and are a quicker, simpler version of the probate process. The probate court will still be involved, but it has far less control over settling an estate. In many states, these processes are even simple enough to handle without even getting counsel involved. As such, they save a lot of money as well as a lot of time.

Get help from an Experienced New Jersey Probate Attorney

Finally, let’s end with a quote from New Jersey probate attorney Justin Scott. He says, “We know that, while a lot of people do go through the probate process, there are also those who may not have the time or money to devote to such a lengthy—and in some cases costly—process. We want those people to understand that it’s okay if they choose to go another route. There are many different options open to them, and we can work together with them to decide on what is ultimately their best course of action.”

This concludes our How-to guide on avoiding probate.

Help! I’m An Executor and I Don’t Know What to Do!

Maybe you were always the one everyone expected to have a plan growing up. Maybe you were more a follower than a leader. Maybe the one you always knew you could count on to have a plan is gone. No matter what, death can hit us like a ton of bricks, whether we thought we were prepared or not. And if you’re here reading this article, you’ve likely just been hit with a ton more. Maybe you and your siblings drew straws and you came up short and now you’re the executor of the estate, and trying not to lose your mind because you don’t know what that means.

If that’s you, fear not! As a New Jersey Estate Planning Attorney, I’m here to help explain things a little better.

First Steps of The Executor

First things first, if you were named as an executor in your loved one’s will, you’ll need to go to the surrogate court and ask to be formally appointed as an executor. You can do this as soon as ten days after death, and will need to bring the will and a certified copy of the death certificate. If the will isn’t self-proving, you’re going to need two witnesses who saw the deceased person sign the will (and who signed it themselves) to appear or submit a sworn statement as well.

What If There Is No Will?

If there isn’t a will, or if the person named as executor in the will doesn’t want to step up, it’s okay! No need to panic. If that happens, the court will then appoint an administrator for you. This person takes on all of the same responsibilities as an executor, and New Jersey law allows for the surviving spouse, if any, the priority of the appointment.

What If I Don’t Live in New Jersey?

If your administrator or executor is not a resident of New Jersey, they must post a bond, unless they will state otherwise. And if you’re confused about bonds, all a bond does is protects the estate (as a kind of insurance policy) if the executor or administrator tries to steal or mismanage any estate funds.

Letters Of Testamentary

If there’s concern that the will is not valid, or someone is contesting it, the surrogate court will issue a document called “Letters of Testamentary.” This document allows an executor or administrator the ability to do the following:

  • Collect, inventory, and keep safe the deceased person’s assets.
  • Have assets professionally appraised, if necessary
  • Pay any valid debts and taxes and
  • Distribute the remaining property as the will or state law (if there is no will) directs.

Notifying Heirs and Beneficiaries

As an executor, you also must mail notice to all heirs and beneficiaries of the proceeding, and you have 60 days to do it. You are also entitled to compensation (or commission) for settling all the affairs of the estate. The commission is normally 6% of the income of the estate, plus 5% of the gross value of the estate up to $200,000. If it’s over that, you get 3.5% up to $1 million and 2% on amounts over $1 million.

So as you can see, it’s a lot to take in and a lot to do, but there is a bit of light at the end of the very dark tunnel. And in a time where everything seems dark, sometimes even the faintest bit of light is enough to brighten up the entire world.