Why and How to Avoid New Jersey Probate

Most people like to avoid thinking about their death as much as possible. However, this can be a detriment when it comes to estate planning. Putting off making a valid will can result in dying without one. When you die without a will in New Jersey, your assets are distributed via intestate succession during the probate process. What most people do not realize, though, is that even if you have a will, you must still go through probate. For that reason, having an estate plan that utilizes various legal tools is often a far better means of ensuring your final wishes are honored and your loved ones are cared for. So why is it important to avoid probate?

What is Probate?

When someone dies, their estate (all assets, money, and property that they own) will proceed to probate court. The probate court will first settle the individual’s estate by paying all debts owed to creditors and settling any liens on their property or assets, as well as paying all state and federal taxes owed. Once the estate has been settled, the remaining assets will be distributed. If the individual had a will, the probate court will first determine whether the will is valid. The will is valid if it complies with all state laws for a valid will, such as being signed, dated, and having the correct number of witnesses who meet the criteria to serve as witnesses.

Additionally, beneficiaries have the opportunity to challenge the will if they do not believe it is valid. They may do this if they believe the will was created under undue influence, or was not the most recent copy. If the will is determined to be valid, the probate court will then work to identify the named beneficiaries and distribute the individual’s assets following the wishes articulated in their will. Fees for the probate court, attorney, and estate administrator will also be deducted from the estate. If the individual does not have a will, the will is determined to be invalid, or the will cannot be located, their assets will be distributed based on the state’s intestate succession statutes.

Why Avoid Probate

Probate is a necessary process, but it can be time-consuming, expensive, and frustrating for beneficiaries who need quick access to necessary assets. The probate process can deplete the assets intended for beneficiaries, and the opportunity to challenge the will can obfuscate the intentions of the testator. Probate often takes several months, and complex estates can take over a year to settle and distribute. During this time, dependents of the decedent may be left without access to their home, shared checking account, and other assets they have come to rely on.

How to Avoid Probate

The best way to avoid probate is by having an estate plan that utilizes trusts as well as other tools, such as joint ownership with survivorship rights and a pour-over will, to ensure that none of the decedent’s assets need to pass through the probate process. Assets transferred into trusts can bypass probate because they become the property of the trust. Since they are no longer the property of the decedent, they are not considered part of the decedent’s estate, and will not have to go through probate.

When assets have a joint owner with survivorship rights, they will automatically become the property of the other owner when one owner dies, also removing them from the decedent’s estate and giving the co-owner immediate access and ownership. A pour-over will ensures that any assets that were not moved into a living trust during the lifetime of the decedent will be transferred into the trust upon their death, instead of having to pass through probate.

Contact Giro Law Today

If you want to ensure that you have a valid will or comprehensive estate plan that protects your interests and takes care of your loved ones, contact Giro Law, located in Hackensack, New Jersey, and schedule a consultation today.