What Happens if a Person Dies in New Jersey Without a Will or a Trust?
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Estate Planning Attorney
We all know we are supposed to do estate planning, but not all of us get around to it. So what happens if you don’t have a will or trust when you die in New Jersey? The answer is your estate will be distributed according to New Jersey laws, which may or may not be how you would have wanted it to be distributed.
Dying without a will is called dying “intestate”. New Jersey has laws that determine what happens to your estate if you don’t have a will. If you are married, New Jersey will award a portion of your estate to your spouse, with the rest divided among your children. If you don’t have children, then your estate will be divided among other living relatives such as your parents or siblings. If you are single, New Jersey provides that your estate will go to your children or to other living relatives if you don’t have children. If you have absolutely no living relatives, then your estate will go to the State of New Jersey. This is called “escheating” to the State of New Jersey.
Note that any jointly held assets, such as bank accounts or real estate, will go directly to the co-owner regardless of what your will or trust says.. In addition any life insurance policies or retirement accounts will go directly to the beneficiary designated on the account or policy. And if you have a trust, any assets in the trust will go to the beneficiary designated in the trust.
One purpose of a will is to name a guardian for your young children; if you do not have a will, the court will determine who will act as guardian of your children. The court will also appoint the person who will administer your estate. In addition, if you are unmarried but have an unregistered partner, your partner will not inherit anything from your estate without a will naming him or her as a beneficiary.
What Happens if you Die Without a Last Will in NJ (Part I)
What Happens if you Die Without a Last Will in NJ (Part II)
New Jersey Probate and Estate Administration Without a Will or Without a Trust:
As I stated earlier, when no Will or trust exists, real and personal property is not distributed according to your wishes, rather, it is distributed according to the statutes of New Jersey. That is why New Jersey estate planning with a Will or trust is so important.
If there is a surviving spouse, civil union or domestic partner, and the property in the name of the decedent does not exceed $20,000.00 a simple Affidavit of Surviving Spouse, Civil Union or Domestic Partner may be issued allowing the husband, wife, partner to dispose of the property without the necessity of a formal administration. When there is no spouse, civil union or domestic partner and the property does not exceed $10,000.00, a close relative can be issued an affidavit to handle the disposition of the estate.
If the total assets of the deceased exceed $20,000.00 in the case of a surviving spouse, civil union or domestic partner ($10,000.00 in the case of other close relatives) the County Surrogate must appoint an administrator. Before someone is appointed, all next of kin of the deceased must renounce their rights to be administrator. The decision to renunciate should only be made after consultation with an experienced New Jersey Estate Administration or New Jersey Probate attorney. Significant legal rights may be affected by an ill advised refusal to serve as an administrator to an estate administration.
When probate is required, an interested party must file an affidavit of administration no sooner than ten (10) days after the date of death. The Surrogate’s Office needs a number of documents from the individual who applies to be the Administrator of the Estate in order to process the application. When an individual submits the required information to be the administrator of an estate, the next step involves a determination of whether there is the need for an estate bond. The bond acts as an insurance policy that the Administrator will perform his or her duties. Once the necessary forms are executed, and any required bond returned, the Administrator will receive letters of administration and administrator certificates. Estate bonding involves a financial evaluation of the prospective administrator by the bonding company. In some cases, an Administrator will be denied a bond and will not be able to serve as a personal representative to the estate if their credit rating is not acceptable.
Who May Act As Administrator in the Probate of an Estate in New Jersey?
Behind a spouse or partner, the children of the deceased are next in line to act as administrator. Normally, only one child can act in this capacity; for example, if a decedent has four children, three children must renounce in favor of the other. If no children survive the deceased but he/she is survived by both parents, one parent must renounce in favor of the other. If no child or parent survives the deceased but he/she is survived by three grandchildren, two grandchildren must renounce in favor of the third. If no children, parents, or grandchildren survive the deceased but he/she is survived by five brothers/sisters, four brothers/sisters must renounce in favor of the fifth. As previously stated, renunciation is a serious decision that should be carefully evaluated in order to protect and ensure that all functions of executor/administrator are performed properly.
To learn how to avoid escheating your estate to New Jersey, contact Fredrick P. Niemann toll-free at (855) 376-5291 or email him at email@example.com.
Estate Planning attorney serving these New Jersey Counties:
Monmouth County, Ocean County, Essex County, Cape May County, Camden County, Mercer County, Middlesex County, Bergen County, Morris County, Burlington County, Union County, Somerset County, Hudson County, Passaic County
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