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No Will, No Problem? What happens when a parent dies without a Will in New Jersey

Updated: Feb 21

If you’ve found your way to this article, you might be handling the recent passing of a parent or family member. We extend our deepest sympathies during this difficult time. Loss is an indescribable emotion, and we sincerely hope that the answers to some of our Frequently Asked Questions below can provide some guidance as you navigate through the process.

 

Disclaimer: The information provided is intended for informational purposes only and should not be construed as legal advice.



Do I need to go to Court to Administer my parent’s estate?

 

It is best to begin by assessing your parent’s assets. Specifically, consider whether there are any probate assets, which means assets held solely in your parent’s name. If there are assets with joint ownership and rights of survivorship, or if there are contracted beneficiaries, these are non-probate assets and they will typically transfer somewhat automatically to the joint owner or the named beneficiary. While your parent was alive, having a bank account titled solely in their own name granted them the authority to deposit and withdraw funds. However, if there’s no joint owner or agent designated through a Power of Attorney, they remain the sole person authorized to transact on that account. Now that they have passed, there’s no living individual with the authority to manage their account unless a person possesses a court order. This is why administration is required to go through the Surrogate Court.

 

When an individual passes away with a valid Will, that Will designates an “Executor” who assumes the authority to manage the deceased’s affairs. This Executor has the option to either accept or decline the position through legal proceedings with the Surrogate Court, ultimately obtaining the necessary court order.

In contrast, when someone dies without a Will (intestate), the State steps in. State laws prescribe a specific order of priority for individuals eligible to apply for the role of “Administrator.” Both Executors and Administrators share similar responsibilities, the only difference is that an Executor is to act in accordance with the Will and an Administrator is to act in accordance with state laws on inheritance. Exceptions exist, but generally, if there are no probate assets, the probate process with the Surrogate Court becomes unnecessary.

 

Who gets to be the Administrator?

 

In New Jersey, the first preference is given to the spouse (or registered domestic partner) of the deceased person. If there is no spouse, then all of the next surviving heirs (such as children, parents, siblings, etc.) can be Co-Administrators if they agree. For example, if a parent dies without a spouse and has three children, all three can be Co-Administrators. But if any child declines, the others can still be Administrators. If no heir wants to be an Administrator, anyone can apply for it. 

 

What do I need to become the Administrator?

 

The Surrogate Court will ask you to complete an information sheet and will give you forms to sign. More often than not, the Surrogate Court will ask you to obtain a surety bond before they will grant you the authority to act.

 

Why might I need a bond?

 

The bond is akin to an insurance policy and are usually issued by insurance companies, however they don't provide coverage to you as the Administrator but rather to the people entitled to inherit from the estate. It protects them if you make a mistake as the Administrator. The bond is a financial guarantee by the company that if the Administrator does not administer the estate properly and the heirs have damages, then the surety company and the administrator will be liable for those damages. Because of this financial guarantee, the person applying for administration must be credit worthy and there is a fee ("premium") to be paid annually to keep the bond active until the estate is closed.

 

What are my duties as an Administrator?

 

Once you have been appointed as the Administrator, then you will be given Administrator Certificates which prove that you have the authority to transact on the accounts that are in your parent's sole name. You will take these to the banks and brokerage firms where the decedent held accounts and will be able to close those accounts and move them to an estate checking or brokerage account. You will also be responsible for using those funds to pay the final debts and bills and for filing your parent's final income tax returns, as well as any estate income tax returns. It is important to note that if any property passes to a person outside of the immediate family (I.e. their parent, spouse, children or grandchildren) there might be inheritance tax due on that transfer and you would be responsible

 

After all the debts are paid and all accounts have been closed and moved to the Estate you will be ready to make distributions. But to whom? Again, the State laws on intestacy will determine who gets to inherit and how much they get. The New Jersey statute can be a bit tricky to navigate, especially if there are no children to inherit. Generally, if your parent and their spouse had children together and your parent had no other children with any other person then the spouse would be entitled to 100% of the estate. If you have half-siblings on your parent's side, then there is a statutory formula to determine how much the spouse received and how much the children receive.

 

How do I cancel the bond?

 

When it comes time to make distributions, each heir will need to sign a document called a Refunding Bond and Release which evidences that they have received their share of the inheritance, they release the Administrator from their duties, and they agree that if a valid debt is due and payable after receiving their inheritance they will pay back their proportionate share to cover the debt.  Once the Refunding Bond and Releases are filed with the Surrogate Court, the company that issued the bond will need to be notified to release the bond.

 

Becoming an Administrator of an estate in New Jersey can be a complex and time-consuming process, but it doesn’t have to be. It is advisable to consult a lawyer who can guide you through the legal requirements and procedures. A lawyer can also help you avoid any potential pitfalls or disputes that may arise during the administration of the estate.

 

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