5 Mistakes You Need to Avoid Regarding New Jersey Probate

April 19, 2022
Alec Borenstein, Esq.

“Probate” refers to a formal court process in which an individual is tasked to settle the estate of a deceased individual. It involves many different steps which must be done in accordance with a specific set of New Jersey laws and according to the wishes that the deceased individual has stated in their Last Will & Testament.  

 

A Last Will & Testament will name an executor which is a person that will be responsible for marshalling and distributing the assets of an estate. Although probate shouldn’t be an overly-complicated process, issues can arise at any time, and we want to address the five most common mistakes that occur:

Mistake #1 – Failing to Keep Accurate Records

Before you can close an estate in New Jersey, you will need to present each beneficiary with an accounting of the assets of it. It’s your responsibility to disclose exactly what bills needed to be paid or what distributions were made throughout the course of the estate administration. When you fail to keep accurate records, you put yourself in a position where you will not be able to put together an accurate accounting which could lead to serious issues with the beneficiaries and ultimately the final distributions. Ultimately, the executor has to be incredibly detail-oriented and can correctly itemize all the disbursements.

Mistake #2 – Lack of Communication Among Beneficiaries

It’s important to remember that at the beginning of the New Jersey estate administration process, it is your responsibility to formally notify the beneficiaries that probate has been opened. The executor and beneficiaries should remain in close communication throughout probate. Beneficiaries will likely begin to feel apprehensive when the don’t receive adequate information about how the process is unfolding. When it comes to probate, you want things to go as smoothly as possible because the matter can quickly spiral out of control.

Mistake #3 – Premature Distribution of Assets

The executor has the authority to approve the distribution and transfer of assets. However, you should always settle any debts of the estate before you make any substantial distributions. Creditors should always receive priority. If you fail to pay these debts and make beneficiary distributions first, you could find yourself in a particularly grave position where you have to try to claw back money from beneficiaries if the remaining estate assets don’t cover these debts.

Mistake #4 – Delays in Opening Probate  

An executor has a duty to carry out their responsibilities in a timely manner. While the probate process may seem overwhelming, you should never put off the process for an extended period of time. New Jersey requires that you wait ten days after a person’s passes away before you can open probate. Although you don’t have to open probate on the eleventh day, you should do so shortly thereafter. This will avoid any issues with beneficiaries not receiving distributions in a timely manner. It’s important to remember that although New Jersey no longer has estate tax, there is still inheritance tax or federal estate tax that may be owed. These taxes are owed within a set period of time from the date of death. The only way that you will be able to complete these returns is if you are formally appointed as representative of the estate which is all the more reason to open probate as soon as possible.

Mistake #5 – Mismanagement of Assets

As the representative of a deceased individual’s estate, your job is to immediately manage and secure their assets. For example, the individual left behind a lot of property in their name. The job of the executor is to arrange for the property’s upkeep. Otherwise, the value and preservation of the property will likely suffer.

 

When settling someone's estate, you’ll likely benefit from creating a separate category for non-probate assets. These assets include:

  • Anything maintained with a trust
  • Life insurance policies
  • Jointly held property
  • Funds from retirement accounts

 

Asset management involves a great deal of effort and diligence from the executor. They ultimately have to ensure that the deceased individual’s estate doesn’t depreciate throughout the entire probate process.

Hire an Estate Planning Attorney

The best way to avoid making mistakes during probate is to meet with a reliable attorney. Here at Borenstein, McConnell& Calpin, we ensure that New York and New Jersey families can successfully undergo the estate administration process. Schedule an appointment with us today, and we can immediately begin drafting estate planning documents.

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Borenstein, McConnell & Calpin, P.C. is a Wills & Estate Planning law firm serving Central and Northern New Jersey, as well as New York City. We strive not only to give you a great client experience, but to become your trusted adviser for life. To reach Alec, please send an email to alec@bmcestateplanning.com.

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