Q. What is probate and why do people say it’s a bad thing?
— Planning ahead

A. Probate creates a public record of your will, which is something you may want to remain private.

Probate is the process after death where will is presented to the Surrogate, or in some circumstances the Superior Court, in order to be recognized as valid and the last will of the decedent, or the person who died, said Catherine Romania, an estate planning attorney with Witman Stadtmauer in Florham Park..

She said the Surrogate will grant letters testamentary to the executor named in the will, and letters testamentary give the executor the authority to administer the decedent’s estate,

If a decedent has a properly prepared and executed self-proving will, probate is a relatively simple process, Romania said.

The individual nominated as the executor in the will takes the original will, along with the decedent’s original death certificate, to the Surrogate of the county in which the decedent resided at the time of death, Romania said.

The will cannot be admitted to probate until after 10 days from the death of the decedent, but the probate papers can be filed during those 10 days, she said. The Surrogate’s office will assist the named executor with completing the necessary forms. There is a fee which depends on the number of certificates of letters testamentary required, she said.

“Once probated, the will is a public document; therefore it is available for anyone to obtain a copy,” Romania said. “For that reason, some individuals establish revocable trusts and pour over their testamentary assets into their trusts. The trust documents are not recorded with the Surrogate.”

If there is no will, of if there are defects or issues that arise with respect to the will, the process becomes more difficult and more expensive, Romania said.

Generally, in a will, the testator will waive the requirement that the fiduciary posts a bond.

“If there is no will, or if the will fails to include such a waiver, a bond must be posted,” she said. “The Surrogate will set the amount of the bond based on the size of the estate.”

If the will is not self-proving, the witnesses must be located and must appear before the Surrogate to testify to the execution of the will by the testator.

Romania said if there are other questions or concerns regarding the will, for example if there are markings on the original will or if a beneficiary or heir objects to the probate of a document as the last will, then the Surrogate cannot probate the will and only the Superior Court can admit the will to probate, Romania said.

If there is no will, letters of administration are issued to a spouse, or if none, the adult children, or if none such other persons based upon their relationship to the decedent as set forth in New Jersey statutes and the decedent’s estate is administered as set forth in the statutes, she said.

It is also helpful to distinguish between probate assets and non-probate assets.

Romania said basically, probate assets are assets which you own alone, with no named beneficiary. Probate assets will pass in accordance with the terms of your will, or if no will, New Jersey statutes.

“Non-probate assets include assets which you own jointly with another person (such as joint real estate, joint bank accounts, etc.) as well as assets which designate a beneficiary (such as assets in your revocable trust, a bank account with a payable on death designation, life insurance or retirement assets),” she said. “These assets will pass to the joint survivor or named beneficiaries by operation of law and are not controlled by your will — unless thenamed beneficiary is your estate.”

Overall, Romania said, probate in New Jersey is a relatively simple, quick and inexpensive process compared to other states, such as Florida or New York. In those states, probate is more complicated, takes substantially longer and is more expensive.

Karin Price Mueller writes the Bamboozled column for The Star-Ledger and she’s the founder of NJMoneyHelp.com. Click here to sign up for the NJMoneyHelp.com weekly e-newsletter. Like NJMoneyHelp.com on Facebook and follow it on Twitter.

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