Monday, May 23, 2005

NJ Surrogate Court - The Place to Probate (which is not a dirty word)

I find that there is a lot of misinformation going around about "Probate". Some see it as an evil thing, to be avoided at all costs. I find this often with reference to the benefits of Living Trusts or Revocable Trusts. While there are some wonderful planning reasons for Revocable Trusts, avoidance of Probate because of the "cost of Probate", at least in New Jersey, should not be one of them.

In New Jersey, there is a Surrogate for each County. The Surrogate is a limited judicial post whose authority extends to facilitating the administration of wills, estates and trusts and acting as the clerk of the Superior Court for activities ranging from adoptions to incompetency matters. Each Surrogate has an office and full staff assisting the Surrogate in the execution of his or her duties.

In many states the process of Probating a will can be expensive and time consuming - this is not so in New Jersey. To understand why, one must first understand what it means to Probate a Will - at its simplest, Probating a Will is the process of offering an original Will to the Surrogate, the Surrogate (or more likely his or her clerk) examining the Will for completeness, the Surrogate issuing Letters Testamentary authorizing the Executor to act on behalf of the Estate, and the Executor giving the Surrogate a check for services rendered. That's it - Probate done.

Everything else that needs to be done with reference to an Estate - gathering and valuing the assets, paying liabilities, preparing tax returns and making tax elections, and making distributions - has to do with Estate Administration, not Probate. These items must be done whether the decedent has a Will, a Living Trust or nothing at all. Estate administration is a complicated and time consuming task - there is generally a lot of information to go through and it takes a long time to do it. Probate is only the starting point of an Estate Administration, not the end-all.

In New Jersey, each Surrogate strives to make the process of Probate even simpler. There is a website -, that acts as a portal to all the Surrogate's Courts in New Jersey. And "Court" can be misleading as well - while the Surrogate's office is located near each County Courthouse, you will be visiting an office, and taken into a private room by a clerk to obtain all the necessary information about the Will. You will be asked to sign some papers (if your attorney prepared the papers in advance, they will already be there waiting for you) and Letters Testamentary issued. These Letters Testamentary are the key to the next phase, which is the Estate Administration.

Not all Probate's are as easy as described - but the majority are. Probate is just part of the process of Estate administration.

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