Wills, Estates and Probate

What Is A Will

A Will is a legal document, which allows you to determine who receives your assets, and the manner in which the beneficiaries shall receive their share. A Will also permits you to choose fiduciaries such as executors, trustees, and guardians of minor children. You should notify your fiduciary of the location of your original Will. Without a Will, the State of New Jersey will determine who receives your assets through the laws of intestacy.

The Requirements of Making a Will

Any person who is at least 18 years old and of sound mind may make a Will. In order to be valid in the State of New Jersey, a Will must be a written document signed by the person making the Will (the testator or testatrix) and the signing must be witnessed by at least two people over the age of 18. A hand-written Will, known as a holographic Will, may be valid. However, it may be necessary for a Superior Court Judge to determine the validity of the handwritten Will. Accordingly, this procedure may be costly.

The Passing of Assets

Any property passing under a Will is called a probate asset. Not all assets are controlled by a Will. Real property held by married couples, as tenants by the entirety will automatically pass to the surviving spouse. Life insurance policies are an example of assets that designate beneficiaries through a contract and are, therefore, not controlled by a Will.

Probate of a Will

Probate is the process which permits the transfer of assets in accordance with a Will from the maker of the Will (the testator) to the beneficiaries under the Will. A Will is probated by the Union County Surrogate if the testator is domiciled in Union County at the time of his death.

A Will cannot be probated until 10 days after the death of the testator. However, you may begin the process with the Surrogate’s Court within this 10-day period; the Surrogate’s Court simply will not admit the Will to probate until after the 10 days have expired.

Probating a Will

In order to probate a Will, if you are the Executor, you must bring the following with you to the Union County Surrogate’s Court:

The original Will;
A certified copy of the death certificate (which you obtain from the municipality in which the testator died);
The full names and latest addresses of the closest surviving next of kin;
Sufficient funds in cash, check, or money order for probate fees.

Not all assets must go through probate to be transferred. Some assets pass by operation of law to other persons without the need for probate. Whether or not a particular asset must go through probate to be transferred depends on how title to the asset is held.

If You Need the Name of an Attorney to Help Prepare a Will

Contact the Union County Bar Association Lawyer Referral Service at (908) 353-4715.
We cannot recommend legal representation for you.

If You Need to Find Out Who the Administrator/Executor or Attorney Is for an Estate

This is called a search, the cost is $10.00 for each estate. Please send a self-addressed, stamped envelope to the Union County Surrogate, 2 Broad Street, Elizabeth, NJ 07207. Provide the Name of the Decedent and the last known address. We will provide you with the name and address of the Executor/Administrator for the estate. All claims on any estate should be filed with the legal representative of the estate.

For more information on estates go to New Jersey State Statutes 3b