It is always difficult to lose a loved one or close friend. Even though you are still grieving, the process of taking care of their final affairs begins immediately upon death. In most cases where there is a Will, the Executor will select the funeral home and decide on the funeral arrangements. However, this is only the beginning of the steps that need to be taken.
You need to probate the Will.
This is the formal process of submitting the Will to the County Surrogate’s Court and “qualifying” as the Executor. The literal definition of what it means to “probate” a will, is to “validate” the will. The Surrogate will be looking to make sure it bears the testator’s signature and it has been duly witnessed by at least two (2) witnesses. Once the will is admitted to probate, you will receive documentation that formally appoints you as the Executor (or, Executrix, if you are a female). This document is known as Letters Testamentary. The Surrogate will also issue an Executor’s Short Certificate which will allow you to act as the estate representative. We typically obtain multiple copies of the short certificates as you will need to supply a copy to each institution where the decedent had an account.
The Executor must also notify all of decedent’s next of kin and heirs that the Will has been probated and that you have been appointed as the Executor.
You may also be required to post a surety bond, which is like an insurance policy protecting the estate in the event the personal representative is dishonest and embezzles assets from the estate, although most attorney-drafted Wills eliminate the bond requirement.
Next, you must administer the estate.
The Executor must also learn about and gather all of the decedent’s assets. This is called “marshaling the assets”. This includes homes, furniture and furnishings, retirement accounts, stocks and other investments, bank accounts, life insurance, jewelry, cash, and personal property, etc.
The Executor is a fiduciary, and you must take care to protect the estate’s assets. For example, if the decedent owned a home and nobody is living in it now, you will need to winterize the property, provide for lawn care, and notify the lender so the property does not fall into foreclosure. Equity lines and credit cards should be frozen to prevent fraud. Automobiles should be secured so they cannot be driven. Homeowner’s and automobile insurance should be continued until the home and car are sold or otherwise transferred from the Estate. Estate funds must be kept separate from your own personal finances and placed into a separate estate account, and you should not use estate funds to pay your own personal expenses incurred on behalf of the estate until a formal distribution occurs.
Once you begin to collect estate assets, you are responsible for paying the decedent’s last debts. This includes final medical expenses, final income taxes, credit cards, personal loans, car payments, mortgages, lawsuits, and judgments, etc. As Executor, you must first determine whether these bills are appropriate and properly payable by the Estate.
The Executor must also pay any inheritance or estate taxes due on the Estate, and all other administrative expenses, such as Surrogate’s fees, carrying costs of real property, and legal fees, accountant’s fees, etc. If the estate continues to generate income, it may be necessary to file a Fiduciary Income Tax Return known as a form 1041.
In all respects, the Executor must faithfully follow the terms of the Will and the laws of the State of New Jersey. Ultimately, once these many steps are completed, the final step is to distribute the remaining assets of the estate to the beneficiaries or heirs.
The Executor has a very wide range of responsibilities and therefore requires very broad authority to act. In the State of New Jersey, the Executor has all of the power to take control of and dispose of the estate assets as the decedent had while alive. Executors can close bank accounts, sell the decedent’s home, and even sue people who owed the decedent money.
The Executor does not have to be an attorney or an accountant to serve in this position. Oftentimes, the Executor is a family member – a husband, wife or child. However, they can and very often should hire professionals to assist them with their duties. Executors can hire estate attorneys to assist in the administrative process, including selling any property, and accountants for any of the estate, inheritance or income tax returns that are required.
The attorneys at Goldstein Law Group have decades of combined experience assisting New Jersey residents with a myriad of estate issues, including probate and non-probate assets, and administration of an estate, and we are here to help you. To schedule an appointment to speak to one of our knowledgeable New Jersey estate attorneys, call us at 732-967-6777 and ask for a free phone or ZOOM video consultation. We represent clients in Old Bridge, Monmouth County, Middlesex County, and Ocean County as well as the surrounding counties throughout the State of New Jersey.