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Transferring Assets in Probate

There are many, many aspects of the death process—both things that lead up to and things that come after it. It’s also a time when people have a lot on their mind. If someone’s just trying to get over an emotional loss, they don’t necessarily have time or want to spend time thinking about who’s going to get what and how it’s done, so let’s take a look at that now, so we can be more prepared when the time comes.

In order to transfer something that belonged to someone at the time of their death, their personal representative needs to follow these steps:

  • Acquire the proper affidavits or certificates from the Surrogate
  • File a tax waiver with the New Jersey Inheritance Tax Bureau in Trenton. What this is, is simply something that is given out by the state that will release any property from any inheritance tax claims that the state might issue or assert. (Please note this is only for New Jersey; other states could have different laws on the same situation.)

You may not even need a waiver. If you must determine whether you need one, consider the following assets:

  • Personal Property

If someone passes away but has money in a joint back account in their name and that of their spouse, parent, grandparent, child, stepchild, a child they’ve legally adopted or their issue, the bank can (and will) give out the money to the surviving owner, but only as long as an affidavit of waiver or an L-8 form has been executed. You can get these from the bank and no tax waiver is needed.

If the money is in the name of the deceased only, but will, by will or law, go to any of the people named above, the bank will release the money to a personal representative. To do this, a Surrogate’s certificate and affidavit of waiver or L-8 form are needed, but no tax waiver is required.

If the money in the account is in the name of the deceased only, the bank will freeze the account, but allow the withdrawal of one-half of the total amount in the account. A Surrogate’s certificate is needed by the bank before this can happen, and the balance may only be released when the appropriate tax waiver has been received by the bank.

To get a tax waiver, all inheritance taxes to the state must be paid. Even if taxes are not due, there could still be a necessary form needing to be filled out to show the Inheritance Tax Bureau that the property listed is exempt.

When this happens, the bureau will issue a tax waiver, and the bank will release any potential frozen funds.

  • Real Property

The transfer of real property is the simplest that we will talk about. If the property is in the name of the deceased only, it will be passed on according to what’s in the will. If there is no will, it will be passed on according to intestacy laws.

If jointly owned with rights of survivorship, the property passes to the surviving owner.

If the

property is owned as tenants by husband and wife in entirety, the property passes to the surviving spouse automatically by operation of law.

  • Motor Vehicles

The title of a vehicle that is jointly in the name of the deceased and his or her spouse will automatically become the sole property of the surviving owner when the other spouse passes. The title may then be changed by the survivor when they appear at a Motor Vehicle office and execute a proper affidavit.

If the title is in the name of the decedent alone, or jointly with another person other than themselves, a personal representative or co-owner must then show either a Surrogate’s certificate or Affidavit, along with the original title, registration and insurance I.D. card.

  • Stocks, Bonds and other Securities

For the transfer of stocks, an examination of the stock certificate must be done first in order to determine the registered or transfer agent. Then that person must be contacted to find out the necessary steps to transfer the stock.

Normally, these requirements include the following: a transfer agent’s transmittal form, an affidavit of domicile, a certified copy of the death certificate, a Surrogate’s certificate, and the original stock certificates, and, in New Jersey, a tax waiver or an affidavit of waiver.

If it is

owned by the deceased and someone else, that stock might have the same requirements listed above in order to have it transferred to the surviving owner.

  • Clearing Title and Transferring Property

Any unpaid inheritance taxes on real estate and shares of stocks of corporations and financial institutions are considered a lien under New Jersey law.

Waivers from the New Jersey Inheritance Tax Bureau are sent out, and these are needed to clear titles to land, and also the transfer of bank account ownership or securities. If a tax is needed, a bill is then submitted and waivers are sent out when the tax is paid.

To clear any real property, a tax waiver has to be filed with a County Clerk in the county where the property (that is, land) is located. If married, any land held by a husband and wife as tenants in its entirety does not have to be reported and is able to be transferred without a waiver.

In order to transfer any stocks, shares and securities of financial institutions and New Jersey corporations, the personal representative needs to obtain waivers. They can then be sent by the Tax Bureau to t

he bank, institution or individual.

If you or someone you love needs assistance with Elder Care law issues, call 856-281-3131. Let us help ease your stress and give you a plan.

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