Probate

As New Jersey and New York probate attorneys, we can help guide you through the legal process of administering the estate of a loved one. The purpose of probate is to ensure that the deceased person’s debts are paid and that their assets are distributed according to their will or, if they did not have a will, according to state law.

Probate With a Will

The first step in the probate process is to determine if the deceased person had a will. And, if so, whether it will be approved by the court through a “simple probate” process or if it will require something more extensive, such as a motion or possibly a trial.

If there is a valid will, an executor, referred to as a personal representative in New Jersey, is appointed to administer the estate. This is done when a county surrogate’s court issues “letters testamentary” appointing them. The executor oversees carrying out the directions in the will, paying any outstanding debts of the estate, and any federal or state “death taxes.”

Serving as an executor can be complicated and time consuming. Depending on the circumstances, it could require reviewing and filing personal tax returns, filing estate and inheritance tax returns, accessing bank accounts, selling assets, making distributions, keeping detailed records on all of these transactions, and potentially providing an accounting when demanded, plus more. Because of this, it is always recommended that you appoint someone that you have trust and confidence in to handle this role.

Probate Without a Will

If a person dies without a will, it is referred to as dying “intestate.” When this happens, the person’s assets will be distributed according to the laws of intestacy in New York or New Jersey. These laws outline how a person’s assets should be distributed by prioritizing certain relatives, such as a spouse and children, over others.

The probate process without a will is not entirely too different than dying with a will; however, it increases the likelihood of disagreement amongst potential candidates to handle the estate. These situations can become very contentious and incur expensive legal bills. For these reasons, it is best to have a will to make it clear to everyone who will handle your estate and how your assets will be distributed.

Regarding the distribution of assets, if the decedent was married and had children, the spouse will typically receive a portion of the assets, and the children will receive the remaining portion. If the decedent was not married and had no children, the assets will typically be distributed to the decedent’s parents or siblings. If the decedent had no living relatives, which is not common, the assets will typically go to the state.

In addition to these distributions, there are many other ways assets can be distributed according to the laws of New York or New Jersey. However, the most important point is that you do not want to state to dictate how your assets will be distributed so it is highly advisable to have a will or living trust. However, if you are dealing with a family member or other loved ones estate where there was no will, please reach out to The Chamberlain Law Firm at (201) 464-1011 or ajc@thechamberlainlawfirm.com to discuss how we can help you.

Inheritance Taxes

In New Jersey, inheritance taxes can be imposed on the transfer of property from a deceased person to their heirs or beneficiaries. The tax is based on the relationship between the deceased person and the recipient, as well as the value of the property being inherited. Note: there are no inheritance taxes in New York.

Class A beneficiaries are generally considered the closest relatives of the decedent, such as a spouse, children, or parents. In New Jersey, Class A beneficiaries are not subject to the inheritance tax.

Class C beneficiaries include brothers and sisters of a decedent. Their inheritance is subject to no tax for distributions under $25,000 but 11% up to $1,075,000, with additional increases from there. There are also Class E beneficiaries which include charities and religious institutions.

Class D is simple: anyone not in Class A, C or E. Their inheritance tax is 15% up to $700,000 and 16% over that amount. (Note that there is no Class B beneficiary in New Jersey.)

This is by no means an exhaustive list of everyone who would pay an inheritance tax but we hope it helps you begin to understand when this tax is due. However, while knowing who pays an inheritance tax is helpful, completing the tax return is another story. So, leave it to the experts at The Chamberlain Law Firm and call us for assistance if you need assistance in filing a New Jersey Inheritance Tax return.

Probate Litigation

While most probate proceedings go smoothly, there are unfortunately occasions where disputes arise. Challenges to a will can include: allegations that the deceased did not have mental capacity to sign the will; or, there was duress or coercion involved in preparing or signing the will; the appointed executor is unfit to serve in this role. Unfortunately, these claims are not that uncommon, and they all can result in a potentially complicated and costly court litigation.

This is why our New Jersey and New York probate attorneys are experienced litigators, which is vital when a dispute arises in a probate case. When we work with our clients on these challenging cases, we always explain the law to them to help them understand how it applies to their unique situation. This makes it easier to guide them in making good decisions during the entire litigation process. Whether it is a settlement negotiation or representing you at trial, we will work to get you a favorable result in a cost-effective way.

Estate Administration, Representing Beneficiaries, & Trust Administration

Besides the topics covered above, our probate attorneys in New Jersey and New York can also help you with other areas related to managing or settling an estate.

One of them is administering the estate. As mentioned above, there may be a lot for an executor to do, and we help them clearly understand all their duties by providing detailed guidance along the way.

The same goes for administration of a Trust by a Trustee. With a trust, there is an extremely high fiduciary standard that needs to be adhered to. It is all explained in the trust, but the trust can be difficult to understand and adhere to its requirements. The consequences for not following the exact “letter of the trust” can be quite substantial. This is why many trustees come to us for guidance.

Additionally, sometimes beneficiaries are not happy with the estate administrations. The reasons are varied, but frequently it deals with the unfair distribution of assets. Many times the concerns are justified. Sometimes they are not. Either way, we will guide you through the process and explain all your options in plain English.

As you can see, when someone passes away, there can be a very wide variety of circumstances that the loved ones they left behind need to deal with. These situations can be relatively simple or extremely complicated. Either way, The Chamberlain Law Firm can help. Please call us at (201) 464-1011 or email us at ajc@thechamberlainlawfirm.com to set up a consultation to discuss your probate matter.