When a loved one leaves behind property and other assets, but has failed to execute a valid Will prior to their passing, the probate process will be slowed. It is very important to prepare your Will in order to make the procedure easier for your loved ones. However, unexpected events occur, and sometimes a loved one isn’t able to leave behind a Will to help guide you in distributing their assets.
Who Decides How Property is Distributed Without a Will?
If there is no Will, property of the deceased is automatically distributed according to the intestacy laws of New Jersey. While some assume these decisions can be made based on what the owner “would have wanted,” state law dictates how assets are distributed. Also, where there is no Will, there is no executor. Therefore, an administrator must be appointed by the Surrogate Court.
There are a few instances where the court doesn’t have to intervene. If the deceased owns assets jointly with another living person, those assets automatically go to them. For property and assets owned solely by the deceased, they are distributed according to intestacy laws.
What are the New Jersey Intestacy Laws?
It should be noted that there is a succession that New Jersey follows when distributing assets of someone’s property when they pass without a Will. Surviving spouses and children are typically the priority, if the deceased had them. Without children, the surviving spouse would be entitled to the entire estate. If the decedent and surviving spouse had children together, this remains true. However, if the children of the deceased are from a separate relationship, then they receive half of the decedent’s assets. If the deceased has living parents, then they are entitled to a quarter of their child’s assets, while the surviving spouse would take the remaining assets and 25% of the estate.
Who can be an Administrator?
The first person typically considered for the administrator is the spouse or domestic partner of the deceased. After that, children also have the right to be administrators. Unfortunately, only one child may act as administrator. Therefore, if the deceased has several children, the remaining children must sign away their rights to act as administrator by signing a renunciation in order for one to move forward. Similarly, if there are no surviving children but there are surviving parents, only one can act as administrator. Next in the line of succession would be grandchildren. If there are no surviving descendants that fit these roles, a sibling may apply for administration.
In order to achieve administrator status, the Surrogate Court will require a bond to ensure the administrator acts in the best interest of the estate. It is possible that the court will deny the bond if one’s credit is not acceptable, and they would not be able to serve as an administrator.
What Happens if You Find the Will Later?
There are rare occasions in which a will is found after the estate has been distributed in accordance with New Jersey intestacy laws. In this case, an application may be filed to the County Surrogate for the Will to be probated. All persons of interest will be contacted, and they will be able to contest the after-discovered Will as you can challenge any Will.
As you can see, not having a Will makes the process of estate administration much more complex and expensive. This is why it is so important to have executed a valid Will upon your passing. If you have any questions regarding estate planning and/or estate administration, do not hesitate to contact Ward, Shindle & Hall.