What happens if a person dies without a Last Will? That’s a very good question, and my response should motivate action. When no Will or trust exists, things get more complex. A person’s real and personal property is not distributed according to a person’s verbal and unwritten intentions (if known); rather, it is distributed according to the laws of the State of New Jersey. That is why estate planning with a Will or trust is so important. If a person dies with assets but no will, trust, and/or beneficiary designation(s), an administrator for his/her estate must be appointed by a court.
If a person owns assets or property jointly with another person, then probate and estate administration are not necessary because ownership automatically goes to the surviving owner. Tax filings may be required, however.
If You Die Without a Will, Who Gets Your Estate Under New Jersey Laws?
When no will exists, the statutes of New Jersey provide for the distribution of property to heirs. These laws are called the laws of “intestate succession”. The chart below shows how an estate is distributed in New Jersey if you do not have a last will or trust. If you die without a will/trust and are a resident of New Jersey, state law provides the manner in which your property will be distributed. After deduction(s) for debts, taxes, and (potentially an elective share claim by a spouse in a second marriage, for example), etc., the net value of your estate will be distributed to your heirs as follows.
- Real estate and other property owned jointly by husband and wife are automatically owned by the surviving spouse.
- Bank and brokerage accounts, CD’s, retirement accounts (IRA’s, 401K’s) and property with a beneficiary designation go to the person designated as the beneficiary.
- A surviving wife or husband receives the entirety of the remaining estate if they have common descendants (children) born or legally adopted while the husband and wife are legally married. If the decedent has descendants and a surviving spouse, but the descendants are from another relationship separate from the surviving spouse, then the surviving spouse is first entitled to the first 25% of the decedent’s Estate but not less than $50,000 or more than $200,000. Thereafter 50% of the remaining assets of the decedent’s estate go to the surviving spouse and 50% is divided among the surviving descendants (children) equally. If the decedent leaves a surviving spouse, no children, but a surviving parent(s), then the surviving spouse is first entitled to 25% of the decedent’s estate, but not less than $50,000 or more than $200,000. The remaining assets of the intestate estate go 75% to the surviving spouse and 25% to the decedent’s parents.
More remote cases are not covered here. Remember, the State of New Jersey takes your property if you have no Last Will and you do not have a spouse, child, or descendants; parent(s); brother(s) or sister(s) and their descendants; grandparent(s); uncle(s), aunt(s) or their children; or their grandchildren.
If any person who would qualify as an intestate beneficiary fails to survive the decedent by 120 hours, he or she is deemed to have predeceased the decedent for purposes of intestate succession.
New Jersey law determines who inherits the estate of a person dying without a will. Beneficiaries are determined by kinship, i.e., bloodline. When there are no known relatives, the estate escheats, meaning all its property goes to the State of New Jersey. Escheating to New Jersey is not a good thing. To learn how to avoid escheating your estate to New Jersey, call Fredrick P. Niemann, Esq. at (732) 863-9900 or e-mail him at fniemann@hnlawfirm.com and set up an office consultation at your convenience.
How is Probate Handled When No Will Exists?
When probate of an estate with no Last Will is required, an interested party cannot file an affidavit of administration no sooner than ten (10) days after the date of a person’s death. The Surrogate’s Office needs several documents from whoever applies to be the Administrator of the Estate to process the application. When an individual submits the required information to serve as an administrator, the next step is to determine whether an estate bond is required. This bond acts as an insurance policy that the Administrator will perform his or her duties diligently, honestly, and in accordance with the law, and will not abscond with the money.
Estate bonding involves a bonding company’s financial evaluation of the prospective administrator. In some cases, an Administrator will be denied a bond and will not be able to serve as a personal representative to the estate if their credit rating is not acceptable. Should this happen, then immediately contact Fredrick P. Niemann, Esq. at fniemann@hnlawfirm.com or call him at (732) 863-9900. The firm has served as substitute administrators in appropriate cases.
Once the bond is posted, the proposed Administrator will receive letters of administration and administrator certificates. He or she can then legally begin the estate administration process.
Estate Administration and Probate of a Small Estate When There is No Last Will
If there is a surviving spouse or domestic partner and the value of all property in the name of the decedent does not exceed $50,000.00, a simple Affidavit of Surviving Spouse, Civil Union, or Domestic Partner can be issued by the County Surrogate, allowing the husband, wife, or partner to dispose of the property without formal estate administration. When there is no spouse or domestic partner and the property does not exceed $20,000.00 in value, a close relative can file an affidavit to handle the disposition of the estate.
Otherwise, the County Surrogate must appoint an administrator. Before someone is appointed, all next of kin must renounce their rights to be an administrator. The term “renounce” means giving up the right to be the administrator of the estate. The decision to renounce should only be made after consultation with an experienced New Jersey Estate Administration and Probate attorney. Significant legal rights will be affected by an ill-advised refusal to serve as an administrator. I’ve handled cases where the worst decision made by a family member was to renunciate their right to administer a loved one’s estate. Contact me at fniemann@hnlawfirm.com or call me at (732) 863-9900 if you have any questions about renouncing as the estate administrator.
What Happens if you Die Without a Last Will in NJ (Part I)
Dying Without a Revocable Living Trust
Who May Act as the Administrator of an Estate When There Is No Will?
Behind a spouse or domestic partner, the children of a deceased parent are next in line to act as administrator. Normally, only one child can act in this capacity; for example, if a decedent has four children, three children must renounce in favor of the other. If no children survive the decedent but he/she is survived by grandchildren, the grandchild(ren) must renounce in favor of an acceptable grandchild. If no grandchildren survive the deceased but he/she is survived by both parents, one parent must renounce in favor of the other. If no parent survives but the decedent is succeeded by brothers/sisters, then the brothers/sisters must renounce in favor of a chosen sibling. As previously stated, renunciation is a serious decision that should be carefully evaluated to ensure that all functions of the executor/administrator are performed properly. For clarification of this important issue, contact Fredrick Niemann, Estate Administration Attorney at fniemann@hnlawfirm.com or call him at (732) 863-9900.
Never Ever…Ever Renounce Being an Executor or Administrator Without a Consultation With an Experienced NJ Probate and Estate Administration Attorney
Fredrick P. Niemann Esq.
Fredrick P. Niemann, Esq., and our experienced New Jersey Estate Administration and Probate Attorneys and staff can be a tremendous resource to make the administration process easier and more efficient. Deciding to be an Administrator of a New Jersey Estate or renouncing your right to serve as an Administrator should be carefully considered. You may be placing substantial risk upon yourself or giving up valuable rights with an inappropriate decision.
Written by New Jersey Estate Administration, Probate Lawyer Fredrick P. Niemann, Esq.
Estate Administration and Probate Lawyers serving these New Jersey Counties:
Monmouth County, Ocean County, Essex County, Cape May County, Mercer County, Middlesex County,
Bergen County, Morris County, Burlington County, Union County, Somerset County, Hudson County, Passaic County