What is a Surrogate?
The Surrogate is a Constitutional Officer who is elected for a five year term. The Surrogate is the Judge of the Surrogate Court and Deputy Clerk of the Superior Court Probate Part. The Surrogate is responsible for probating Wills and other Estate Matters, supervising minors' trust funds, and serves as the clerk of the court for adoptions, Adult Guardianships, and all probate matters.
What is it meant to Probate?
Upon the death of a Testator or Testatrix (maker of the Last Will and Testament), the probate procedure can begin. This is a legal process which the Surrogate establishes the genuineness of the Will and appoints an Executor or Executrix.
Are Wills registered?
Wills are not registered with the Surrogate Court. The original Last Will and Testament will be filed in the Surrogate Court upon admission to Probate.
How do I begin the Probate process?
The Executor can begin by coming into the Surrogate's office with the original Will and original death certificate. (Please see the What To Bring To Our Office, section of this website).
Do I need an appointment?
No. The Gloucester County Surrogate's Court is open from 8:30 a.m. to 4:30 p.m. However, it takes at least 30 minutes for the interview so please arrive no later then 4:00 p.m. No appointments are necessary.
What if there is no Will?
When there is no Will, an Administrator is appointed by the Surrogate. The surviving spouse has the first right to apply for the position. Where one or several heirs (persons of the same or closer degree of kinship) seek to be appointed, all the other heirs must renounce their right to be appointed. In most cases, a surety bond must be furnished to cover the value of the real and personal property of the estate.
What is the purpose of a surety bond and why is it required?
The purpose of the bond is to protect the heirs and creditors of the estate. Pursuant to New Jersey statutes, N.J. S.A. 3B:15-1, the order of appointment includes a requirement that the Administrator post bond.
How do I get released from the surety bond?
A Refunding Bond and Release must be filled out by every beneficiary of the estate, including the Executor/Administrator, once all the debt has been paid and the money has been distributed. This form releases the Executor/Administrator from all claims and demands whatsoever in respect to the estate of the decedent. The Surrogate's office files the original Refunding Bond and Release form for a filing fee of $10.00 and the bonding agency gets a file stamped copy.
How is distribution made if there is no Will?
If the decedent dies without a Will, there is statue which determines to whom the decedent's property is to be distributed according to the degree of family relationship, N.J.S.A. 3B:5-3 and N.J.S.A. 3B:5-4.
Without a Will, how much is the surviving spouse entitled to?
- In cases where there is a spouse and children of the decedent, all of which are children of the spouse, the spouse receives 100% of the estate.
- In cases where there is a spouse and children of the decedent, some of whom are not children of the spouse, the spouse receives the first 25% (but not less than $50,000 nor more than $200,000) plus one half of the balance. The children receive all other estate assets.
- In cases where there is a spouse and parent(s) but no children, the spouse receives the first 25% (but not less than $50,000 nor more than $200,000) plus one half of the balance. The parent(s) receive all other estate assets.
What paperwork is necessary for a small estate when the decedent died without a Will?
- There is a procedure whereby the assets of the small estate can be transferred to the surviving spouse without the necessity of Administration. An Affidavit of Surviving Spouse can be issued to the surviving spouse if the decedent did not have a Will and the real and personal assets of the decedent do not exceed $50,000.
- A similar procedure is used when the decedent dies without a Will, leaving no surviving spouse, but does leave next of kin. In such a case, if the total value of the real and personal property of the decedent does not exceed $20,000 one of the next of kin, with the consent of the others, may file an Affidavit of Next of Kin in lieu of Administration.
*Both procedures can only be done when the decedent did not have a Will. If there is a Will, it must be probated.
What information should I collect?
- The decedent's personal representative should make a list of all decedent's next of kin, degree of relationship, address and age.
- Will and final instruction documents
- Death certificate
- Checking/Savings/CD acct. numbers & banks
- Stocks, bonds, mutual funds, other securities
- Pension and annuity records
- Insurance polices
- Union/company health and other benefits
- Real estate deeds, related records
- Income tax records
- Vehicle titles
- Installment loans
- Birth/baptismal certificates., adoptions documents
- Social security number
- Marriage, divorce, prenuptial documents
- Military and civil service documents
What is a Surrogate short certificate?
The short certificate acts as evidence of the authority of the personal representative to act.
How many Surrogate short certificates will I need?
A short certificate will be needed for the transfer or sale of every asset in the decedent's name alone. Determine how many assets there are and that is how many shorts will be needed. Typically, a short certificate is valid for up to a year. However, some places will only accept one dated within 60 days.
I am Power of Attorney. Does this mean I can access the estate assets?
No. Power of Attorney is a legal document that becomes null and void once the principal dies. You will need to be appointed the Executor or Administrator in order to transfer or sell any estate assets. The Power of Attorney ceases upon the death of the decedent.
Where can I get more death certificates?
To obtain a certified copy of a death certificate go to the municipal building of the town where the person died.
What are the basic obligations of the Executor or Administrator?
The Executor or Administrator is, in general, required to collect and safeguard the assets of the estate, pay the debts of the decedent and as well as any taxes due, to make distribution to the devisees under the Will or heirs if the decedent had no Will, and if required, to provide an accounting of the administration for the estate.
Is it necessary to notice all beneficiaries and next of kin that the Will was probated?
Yes. Within 60 days of the date of probate a notice in writing that the Will has been probated, the place of and date of probate, the name and address of the personal representative and a statement that a copy of the Will shall be furnished upon request.
Where does the Executor/Administrator obtain the funds to pay debts?
The Executor/Administrator will pay the debt out of the estate assets. Generally, the Executor/Administrator should open an estate checking account which can be used to receive and disburse funds.
Do I have to pay all claims?
If claims are made, the Executor does not have to automatically accept the claims but can dispute them and has three months to make any decisions.
Am I entitled to compensation for acting as the Executor or Administrator?
Generally, an Executor or Administrator is entitled to a commission of 5% on the estate assets and 6% on the income generated during the period of administration.
How do I get a Will out of a safe deposit box?
The Executor is permitted to remove the original Will, as well as the deed to a cemetery plot and certain life insurance policies from the decedent's safe deposit box before probate in the presence of a bank officer.
What if the Will is not properly executed?
The Surrogate will advise the personal representative as to the proper procedure in order to allow the Will to be admitted to probate. This procedure normally involves a formal hearing before a Judge of the Superior Court.
What is a formal accounting?
This is a complex breakdown of all assets, disbursements, distributions, fees and commissions generally prepared by an attorney.
Do I need a formal accounting?
No. Not unless ordered by court or you elect to do so.
Does a divorce revoke the entire Will?
A divorce operates as revocation of any bequest made to your former spouse or any appointment of your former spouse as executor, but in all other respects the Will is still effective.
Can I prepare my own Will?
Yes, but this is NOT recommended. Without professional guidance and advice it may not be legally sufficient to be admitted to probate. "Do it yourself Wills", often do not contain all the necessary components that are required by law.
- If you are over the age of 60 take advantage of Gloucester County's Free Wills for Seniors Program. Call 856-384-6900 for more information.
- If you a veteran under the age of 60 take advantage of the Gloucester County's Free Wills for Veterans program. Call 856-401-7660 for more information.
- All others should contact an attorney. Call Lawyer Referral at 856-853-4589.
Where should I keep my Will?
You should keep your Will in a safe place such as a fire proof strong box. Your Executor should know exactly where it is.
Do I still need a Will even if I have a small estate?
Yes. No matter how small of an estate a Will is still necessary. It is important to safeguard your estate and designate who you want in charge.
What is a Living Trust?
A Living Trust is a document by which the owner of an asset transfers ownership of that asset to a trustee. The alleged benefit of the trust is to remove that asset from one's probateable estate by relinquishing ownership. According to the marketers of these trusts, removing assets from one's probatable estate will result in significant tax savings and will avoid the probate process.
HOWEVER, a Living Trust is very costly and in most cases not necessary. Avoiding probate is not always a guarantee. Even if there is just one titled asset, such as a vehicle, left out of the trust probate will still be necessary. Also, a vast majority of estates are not subject to any federal or estate taxes. Generally, the probate process is very easy. There is only a ten day waiting period from the date of death before a Will can be probated. Once that time has passed, the process can begin and be completed within a few days if the Will is properly executed and no one is contesting the probate. Senior citizens especially are cautioned to be aware of solicitation for Living Trusts.