Probate and Administration
Commencing probate or intestate estate administration
A decedent’s Estate, whether by probate or administration, serves the vital role of gathering the assets of the decedent, settling the decedent’s debts and other matters, and then distributing the assets to the heirs or beneficiaries of the Estate.
In New Jersey and Pennsylvania, estates operate differently where the decedent left a Will and where the decedent died without a Will. The terminology may be confusing, and the fact that many terms are used interchangeably in an informal way adds to the confusion. The terminology used here is New Jersey’s; Pennsylvania has largely equivalent terms. In both States, the central distinction is between probate, where the decedent left a Will, and administration, where the decedent died intestate (that is, without a Will). All ordinary decedent’s Estates are either probate matters or administration matters.
When a person dies leaving a Will, the Estate is commenced by probating the Will. The law in New Jersey requires a 10-day waiting period after the death of the decedent before a Will can be admitted to probate. The process of probating the Will in NJ is done by application to the Surrogate, typically in the county in which the decedent was residing. The personal representative named in the Will – more commonly called the executor or executrix – must qualify before the Surrogate, and the original Will, an original death certificate, and several other items must be submitted. Once the Will has been accepted into probate, an instrument called letters testamentary will issue to the personal representative. The personal representative should also obtain a number of “short certificates” for use in the operation of the Estate.
If the personal representative intends to retain counsel, we strongly recommend that an attorney be retained before any application is made to the Surrogate. Competent counsel will insure that errors are avoided and that the process of probating the Will is less burdensome on the executor. Our firm will typically undertake the representation without initial charge to the personal representative, with billing due once Estate funds are available.
Most decedent’s in New Jersey leave no Will, and these intestate Estates are handled by administration instead of probate. The rules governing qualification as administrator are quite different from those relating the qualification as an executor under a Will. The application is handled through the Surrogate of the county in which the decedent lived, and generally does not require formal court action. In many circumstances, a bond must be paid by the administrator. An administrator receives letters of administration, which have the same force and effect as letters testamentary. The duties and fiduciary obligations of an administrator are generally the same as an executor under a Will.
As with probate, we strongly recommend that counsel be retained at the outset if a lawyer’s services are going to be employed. Likewise, as with probate, our firm will typically undertake the representation without initial charge, holding our billings until Estate funds are available.