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Surrogate General FAQ

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1. Do I need an attorney for this process?

You are not required to have an attorney to go through the probate or administration process.  Many executors and administrators go through the process without one.  

The Surrogate's Court is here to guide you through the process itself, but cannot give or imply legal advice.  No recommendations made by the Surrogate's Court should be construed as legal advice. 

If the estate is complex, contested, or you are feeling overwhelmed, you may want to consult with an estate attorney.  Unfortunately, we cannot recommend attorneys to the public.  

2. If there is no will, then who gets what?

If someone dies with:	Here's who gets what:
descendants, but no spouse	children inherit everything; if any children are deceased, then their children (decedent's grandchildren) inherit their deceased parent's share
spouse, but no descendants  or parents	spouse inherits everything
spouse and descendants only shared with that spouse	spouse inherits everything
spouse and children from someone other than spouse	spouse inherits the first 25% of intestate property (but not less than $50,000 or more than $200,000), plus 1/2 of the balance; children of decedent share remaining balance of the estate; if any children are deceased, then their children (decedent's grandchildren) inherit their deceased parent's share
spouse and descendants shared with spouse,  but your spouse also has descendants with someone else	spouse inherits the first 25% of intestate property (but not less than $50,000 or more than $200,000), plus 1/2 of the balance; decedent's children inherit everything else; stepchildren do not inherit
spouse and parents (no descendants)	spouse inherits the first 25% of  intestate property (but not less than $50,000 or more than $200,000), plus 3/4 of the balance; parents inherit remaining remainder
parents but no spouse or descendants	parents inherit everything; if no parents survive, siblings of decedent inherit equally; if any siblings are deceased, then their children (decedent's nieces/nephews) inherit their deceased parent's share
siblings, but no spouse, descendants , or parents	siblings inherit everything; if any siblings are deceased, then their children (decedent's nieces/nephews) inherit their deceased parent's share

Descendants are children, grandchildren, great grandchildren, etc. 

3. What do I do with a vehicle registered only in the decedent's name?

A vehicle in the decedent's name may be operated for 30 days after the date of death by immediate family or any licensed driver authorized by the decedent's family. Thereafter, the title must be transferred by the executor or administrator. One must be deemed executor or administrator by the Surrogate prior to the transfer.

4. What does it mean for a will to be self-proving? What happens if the will is not self-proving?

What does it mean for a will to be self-proving?

For a will to be considered self-proving, it must contain specific wording related to and including two witnesses and a notary.  

Pursuant to Statute 3B:3-4 "Making will self-proved at time of execution", a will may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized pursuant to R.S.46:14-6.1 to take acknowledgments and proofs of instruments entitled to be recorded under the laws of this State, in substantially the following form:

I, .........., the testator, sign my name to this instrument this .... day of ......., 20..., and being duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am 18 years of age or older, of sound mind, and under no constraint or undue influence.

.........................................
Testator

We,............., the witnesses, sign our names to this instrument, and, being duly sworn, do hereby declare to the undersigned authority that the testator signs and executes this instrument as the testator's last will and that the testator signs it willingly (or willingly directs another to sign for him), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is 18 years of age or older, of sound mind, and under no constraint or undue influence.

........................................
Witness

........................................
Witness

The State of................

County of...................

Subscribed, sworn to and acknowledged before me by ................, the testator and subscribed and sworn to before me by ............ and ............., witnesses, this ............. day of.................

(Signed).............................  (Notary / Attorney) with stamp/seal

What happens if the will is NOT self-proving?

If the proper wording is present with the signatures of the testator and of two witnesses, but the will has not been notarized OR the notary paragraph is lacking/contains errors OR one of the witnesses has also acted as the notary, the executor would need to find and contact one of the witnesses and ask them to visit the Surrogate's Court to sign a proof.  

If the will has been properly notarized, but is lacking the proper attestation wording by the witnesses, then both witnesses may need to sign proofs.

This can sound confusing, but we can help.  Please contact the Surrogate's Court for assistance on this process at 908-788-1156.

5. The decedent hasn't spoken to closest next of kin for years. Do I still have to tell the Surrogate's Court about them?

Yes.  Whether they are estranged or not or inherit or not, closest next of kin must be listed on your application for probate or administration.

We cannot accept your application if you leave someone out or list an address as unknown.  We suggest you speak to other relatives, family friends, search Google, White Pages, social media, etc. to attempt to obtain missing addresses.  

6. What are my duties as executor or administrator?

EXECUTORS:  Please review or print our brochure here:  Duties of an Executor (PDF)

Executors should send a Notice of Probate to next of kin and beneficiaries within 60 days of probate.  See a sample here:  Notice of Probate (PDF) 

ADMINISTRATORS:  Please review or print our brochure here: Duties of an Administrator (PDF)

7. Who is considered next of kin?

We require spouse and children to be listed.

IF decedent has a child who predeceased him or her and that child produced grandchildren, the those grandchildren must be listed. 

IF there is NO spouse or children, you would list the decedent's parents.  

IF no parents have survived the decedent, move on to siblings (if a sibling predeceased the decedent, but produced nieces or nephews, then those nieces/nephews must be listed).  

If there are no siblings or nieces / nephews, move onto grandparents (if alive) and then onto decedent's aunts/uncles.  Then cousins.  Etc.  

INSERT KINSHIP CHART

8. Am I personally responsible as executor/administrator for the decedent's debts?

If you handle the estate assets, payment of debts, and distribution to beneficiaries properly, then you should not be personally liable for estate debts. Keep organized records of money coming into or out of an estate.  

Debts must be paid before any distributions are made to beneficiaries. If you pay beneficiaries knowing debts are going unpaid, then there could be an issue. 

Contact all creditors you are aware of as soon as possible and notify them of the debtor's death. Ask them what can be done for debts that are more than the estate can afford. 

If there are not enough funds to pay creditors, New Jersey’s probate code dictates a priority for paying creditors. 

Pursuant to 3B:22-2, if the applicable assets of the estate are insufficient to pay all claims in full, the personal representative shall make payment in the following order:

a. Reasonable funeral expenses;

b. Costs and expenses of administration;

c. Debts for the reasonable value of services rendered to the decedent by the Office of the Public Guardian for Elderly Adults;

d. Debts and taxes with preference under federal law or the laws of this State;

e. Reasonable medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him;

f. Judgments entered against the decedent according to the priorities of their entries respectively;

g. All other claims.

No preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over claims not due. The commencement of an action against the personal representative for the recovery of a debt or claim or the entry of a judgment thereon against the personal representative shall not entitle such debt or claim to preference over others of the same class.

Amended 1989, c.248, s.8; 2004, c.132, s.82; 2005, c.304, s.47.

9. What if there's not enough money in the estate to pay all debts?

Debts must be paid before any distributions are made to beneficiaries. 

Contact all creditors you are aware of as soon as possible and notify them of the debtor's death. Ask them what can be done for debts that are more than the estate can afford. 

If there are not enough funds to pay creditors, New Jersey’s probate code dictates a priority for paying creditors. 

Pursuant to 3B:22-2, if the applicable assets of the estate are insufficient to pay all claims in full, the personal representative shall make payment in the following order:

a. Reasonable funeral expenses;

b. Costs and expenses of administration;

c. Debts for the reasonable value of services rendered to the decedent by the Office of the Public Guardian for Elderly Adults;

d. Debts and taxes with preference under federal law or the laws of this State;

e. Reasonable medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him;

f. Judgments entered against the decedent according to the priorities of their entries respectively;

g. All other claims.

No preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over claims not due. The commencement of an action against the personal representative for the recovery of a debt or claim or the entry of a judgment thereon against the personal representative shall not entitle such debt or claim to preference over others of the same class.

Amended 1989, c.248, s.8; 2004, c.132, s.82; 2005, c.304, s.47.

10. What debts of a decedent take priority?

3B:22-2. If the applicable assets of the estate are insufficient to pay all claims in full, the personal representative shall make payment in the following order:

a. Reasonable funeral expenses;

b. Costs and expenses of administration;

c. Debts for the reasonable value of services rendered to the decedent by the Office of the Public Guardian for Elderly Adults;

d. Debts and taxes with preference under federal law or the laws of this State;

e. Reasonable medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him;

f. Judgments entered against the decedent according to the priorities of their entries respectively;

g. All other claims.

No preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over claims not due. The commencement of an action against the personal representative for the recovery of a debt or claim or the entry of a judgment thereon against the personal representative shall not entitle such debt or claim to preference over others of the same class.

Amended 1989, c.248, s.8; 2004, c.132, s.82; 2005, c.304, s.47.

11. What happens if assets were left to a minor?

If assets are left to minor children and no custodial account or trust was established to manage that property, the Surrogate's Court will need to appoint a property guardian to manage that property until a child turns eighteen.  Funds will be held in a trust fund by the Court.  

12. I don't think the executor or administrator is doing their job properly; what can I do?

If you want to present your concern to the Surrogate's Court, you would need to file a formal Complaint to Superior Court, Chancery Division, Probate Part.

While an attorney is not required to do so, please be advised that the Surrogate's Court cannot provide you with legal advice.

You may research the proper process and documentation required as a self-represented litigant OR consult with an attorney.  

13. The decedent is still getting social security checks. Should I call someone about this?

Contact Social Security: 1-800-772-1213

14. I have tax questions. Who do I contact?

We suggest you contact an accountant for specific tax questions.

You can also call the NJ Transfer Inheritance and Estate Tax Division at 609-292-5033, or 609-292-5035, or 609-292-7147

US Tax Information at 1-800-829-1040

15. What do I need to transfer a vehicle title?

According to the NJ MVC website, a vehicle registered in the name of a decedent may be operated for 30 days after the date of death.  All documents must be brought to a motor vehicle agency or full service agency to complete the transaction. 

If the title is in both the husband and wife’s name:

Submit the old title, a copy of the death certificate and a notarized Affidavit (Form BA-62)

• The $60 title fee will apply (the existing registration can be transferred for an additional $4.50).  If the vehicle was left in a will:
  • Submit the old title properly assigned by the executor of the estate and a Surrogate's Short Certificate
  • Pay the $60 title fee (the existing registration can be transferred to an immediate member of the family for $4.50)

To transfer ownership to the Estate:

• Apply for a Entity Identification Number (EIN – formerly CorpCode).
• Once received, bring the EIN, the old title, the Surrogate's Short Certificate (obtained through the probate or administration process), and your driver’s license as proof of identification to a motor vehicle agency.
• Pay the $60 title fee (or $85 for a financed vehicle title fee)
• In addition, a new registration and proof of New Jersey insurance in the estate name is necessary if the vehicle will be operated.

The MVC accepts American Express® card, Visa® card, MasterCard®, Discover card®, check, money order or cash.

16. Do I need to come to the Surrogate's Court if the only asset is a vehicle titled to my deceased spouse AND myself?

If BOTH of your names are on the title and the vehicle is the only asset, you should be able to avoid the Surrogate's Court process.

According to the NJ MVC website, If the title is in both the husband and wife’s name: 

• Submit the old title, a copy of the death certificate and a notarized Affidavit (Form BA-62)
• The $60 title fee will apply (the existing registration can be transferred for an additional $4.50).  If the vehicle was left in a will:
  • Submit the old title properly assigned by the executor of the estate and a Surrogate's Short Certificate
  • Pay the $60 title fee (the existing registration can be transferred to an immediate member of the family for $4.50)

17. Can I obtain additional / updated estate certificates?

An executor can obtain updated probate certificates at any time by coming to see us in person or by submitting a written request.  Written requests should include the name of the estate, the number of updated certificates being requested, and a $5.00 fee per certificate, payable to Hunterdon County Surrogate.

An administrator is limited to one certificate per asset.  If additional assets are discovered, the administrator should make an appointment to provide the new information and sign an Amended Application for Administration to obtain the additional certificates necessary.  This may carry a $25 open-file fee and $5 fee per certificate, payable to Hunterdon County Surrogate. 

18. How do I obtain an EIN / Tax ID number?

E.I.N. stands for “Employer Identification Number”, often referred to as a “Federal Tax ID Number”

When someone passes away, their Social Security Number expires.   You will need to provide the bank with an EIN to create an Estate Account. 

You may apply for an EIN online at:  https://sa.www4.irs.gov/modiein/individual/index.jsp               

Choose EIN Type:  ESTATE 

 WARNING:       Do not search for EIN information on the internet---you may be charged to obtain the EIN.  This is a free process provided by the IRS.   

19. I need to obtain a bond. Where can I get one?

Here is a list of some local bonding companies we have worked with:

State Farm – Ed Mahn
31 Church St.
Flemington, NJ 08822
908-782-2010

McPherson and Newland
20 Bloomfield Avenue
Flemington, NJ 08822 
908-782-3710

True and Associates
12A Leigh Street
Clinton, NJ 08809
908-713-6711

James A. Connors Associates, Inc.
441 Route 513
Califon, NJ 07830
908-832-7600

Groendyke Associates
295 Route 513
Califon, NJ 07830
908-638-8558  

Surety One, LLC
717 Ramapo Avenue, PO Box 333
Pompton Lakes, NJ 07442
973-831-5880

Bondology
John T. Costa, Agency, INC.
205 Hamburg Tpk., Suite J
Wayne, NJ 07470
973-835-8444

Colonial Surety Company
123 Tice Blvd., Suite 250
Woodcliff Lake, NJ 07677
1-800-221-3662

BCA Insurance Group
Lisa Post, Director of Surety 
100 B Centre Blvd.
Marlton, NJ 08053
609-922-5905
lpost@bca-inurance.com

Keller Insurance**
Edward Mignone, CLCS
1107 Mantua Pike, Suite 706
West Deptford, NJ 08051
856-464-9899
www.kellerinsurance.com

Assured Partners / The Insurance Centers**
Heather Duffy
20 Commerce Drive, Suite 303
Cranford, NJ 07016
732-256-3420 

*These companies can often assist with difficult-to-bond applicants.

 

20. What effect does a divorce have on a will?

A divorce operates as a revocation of any bequest made to your former spouse or any appointment of your former spouse as executor, but in all other respects, the will is still effective.

21. What if I don't want my inheritance? How do I disclaim?

What is a disclaimer?

A disclaimer is an estate planning tool that allows you to redistribute transfers of assets or property by refusing to accept a gift, bequest, or other form of property transfer.  A disclaimer is an heir's legal refusal to accept a gift or a bequest. The disclaiming party does not have the authority to direct who inherits their share.  If you properly execute a disclaimer, the asset disclaimed will pass to whoever would have received it had you died before the person who left the asset to you.  (In Administrations, disclaimers do not move "sideways" to other beneficiaries, they move down the bloodline.  For example, if a father leaves his son and daughter each $1,000 and his daughter disclaims, then her children get her $1,000 --- not her brother.) 

Once disclaimed, the property is then distributed to the next recipient.  The person disclaiming the property, a disclaimant, is not regarded as having received the property, or having transferred the property.

In general, there is no deadline to file a disclaimer.
However, there is a 9-month deadline (from the date of death) to file a "qualified" Disclaimer for tax purposes.  

Who can Disclaim?   3B:9-2. Disclaimer of an interested party

a. Any person who is an heir, or a devisee or beneficiary under a will or testamentary trust, or appointee under a power of appointment exercised by a will or testamentary trust, including a person succeeding to a disclaimed interest, may disclaim in whole or in part any property or interest therein, including a future interest, by delivering and filing a disclaimer under this chapter.

b. Any person who is a grantee, donee, surviving joint tenant, surviving party to a P.O.D. account or a trust deposit account, person succeeding to a disclaimed interest, beneficiary under a nontestamentary instrument or contract, appointee under a power of appointment exercised by a nontestamentary instrument, or a beneficiary under an insurance policy, may disclaim in whole or in part any such property or interest therein by delivering, and if required by N.J.S.3B:9-7, by filing, a written disclaimer under this chapter.

c. A surviving joint tenant may disclaim as a separate interest any property or interest therein devolving to him by right of survivorship without regard to the extent, if any, the surviving joint tenant contributed to the creation of the joint property interest.

d. A disclaimer may be of a pecuniary or a fractional share, expressed as either a percentage or dollar amount, specific property or any limited interest or estate.

What needs to be in a Disclaimer?  3B:9-3. Requirements of a disclaimer

See our Disclaimer Sample here:  Disclaimer Sample (PDF)

a. A disclaimer shall be in writing, signed and acknowledged by the person disclaiming, and shall:

(1) Describe the property , interest, power or discretion disclaimed; (Will need lot, block # for property)

(2) If the property interest disclaimed is real property, identify the municipality and county in which the real property is situated; and

(3) Declare the disclaimer and the extent thereof.

b. The disclaimer shall be made within the time prescribed by section 68 of P.L.2004, c. 132 (C.3B:9-4.2).

 

How / who is it delivered to?  3B:9-6. Delivering and filing disclaimer 

*Note there is $5.00 per page filing fee

a. The disclaimer of an interest by an intestate heir, or a person who is a devisee or beneficiary under a will or a testamentary trust or who is an appointee under a power of appointment exercised by a will or testamentary trust, including a person succeeding to a disclaimed interest, shall be filed in the office of the surrogate or clerk of the Superior Court in which proceedings have been commenced or will be commenced for the administration of the estate of the decedent or deceased donee of the power of appointment. A copy of the disclaimer shall also be delivered to any personal representative, or other fiduciary of the decedent or to the donee of the power or to the holder of the legal title to which the interest relates. The fiduciary shall promptly notify the person or persons who take the disclaimed interest, although any such failure to provide the notice required herein shall not affect the validity of the disclaimer.

b. The disclaimer of an interest in property, other than property passing under or pursuant to a will or testamentary trust shall be delivered to the fiduciary, payor or other person having legal title to or possession of the property or interest disclaimed or who is entitled thereto in the event of disclaimer. Any fiduciary, payor or other person having title to or possession of the property or interest who receives such disclaimer shall promptly notify the person or persons who take the disclaimed interest, although any such failure to provide the notice required herein shall not affect the validity of the disclaimer.

c. In the case of a disclaimer by a fiduciary of a power or discretion:

(1) If such disclaimer is made after court authorization, the fiduciary shall deliver a copy to such person or persons and in such manner as shall be directed by the court; or

(2) If such disclaimer is made without court authorization pursuant to N.J.S.3B:9-4(a), the fiduciary shall deliver a copy to all co-fiduciaries, but if there are none, then to all persons whose property interests are affected by the disclaimer.

d. In the case of a will or testamentary trust or power of appointment under a will or testamentary trust, if real property or any interest therein is disclaimed, the surrogate or clerk of the Superior Court, as the case may be, shall forthwith forward a copy of the disclaimer for filing in the office of the clerk or register of deeds and mortgages of the county in which the real property is situated. In the case of a nontestamentary instrument or contract, if real property or any interest therein is disclaimed, the original thereof shall be filed in the office of the clerk or register of deeds and mortgages of the county in which the real property is situated.

e. For the purposes of this section, delivery may be effected: (1) in person; (2) by registered or certified mail; or (3) by another means which is reasonably likely to accomplish delivery.

22. Who becomes the guardian of orphaned minors if there is no will?

Application is made to the Surrogate who usually appoints a person from among the next of kin of the minor.

23. How do I file a claim against an estate?

See a sample of a claim here:  Claim By Creditor (PDF)

Pursuant to NJ Statute 3B:22-4, creditors of the decedent shall present their claims to the personal representative of the decedent's estate in writing and under oath, specifying the amount claimed and the particulars of the claim, within nine months from the date of the decedent's death. If a claim is not so presented to the personal representative within nine months from the date of the decedent's death, the personal representative shall not be liable to the creditor with respect to any assets which the personal representative may have delivered or paid in satisfaction of any lawful claims, devises or distributive shares, before the presentation of the claim.

Pursuant to NJ Statute 3B:22-7, within 3 months after the presentation to him of a claim, the personal representative shall allow or dispute it or allow it in part and dispute it in part, and give notice in writing to the creditor, his agent or attorney, of that which he allows or disputes.

24. Do all states have the same probate laws?

No, although New Jersey is one of several states to enact the Uniform Probate Code, most states have their own probate laws. It is a good idea to have your will reviewed when you move to another state.

25. What is the commission for being the representative of an estate?

2021 New Jersey Statute  3B:18-14 states that:

Commissions on all corpus received by the fiduciary may be taken as follows:

5% on the first $200,000 of all corpus received by the fiduciary;

3.5% on the excess over $200,000 up to $1,000,000;

2% on the excess over $1,000,000; and

1% of all corpus for each additional fiduciary provided that no one fiduciary shall be entitled to any greater commission than that which would be allowed if there were but one fiduciary involved.

Such commissions may be reduced by the court having jurisdiction over the estate only upon application by a beneficiary adversely affected upon an affirmative showing that the services rendered were materially deficient or that the actual pains, trouble and risk of the fiduciary in settling the estate were substantially less than generally required for estates of comparable size.

2021 New Jersey Statute 3B:18-13. states that:

Commissions in the amount of 6% may be taken without court allowance on all income received by the fiduciary. For the purposes of this section, income which is withheld from payment to a fiduciary or fiduciaries pursuant to any law of this State, or of the United States, or any other state, country or sovereignty, or of any political subdivision or governmental unit of any of the foregoing, requiring the withholding for income tax or other tax purposes, shall be deemed to be income received by the fiduciary, and shall be subject to income commissions as provided in this section in the same manner as if actually received by the fiduciary.

26. What if the decedent died in another country?

The representative of the estate will need to obtain the death certificate from the other country, a translated copy if necessary, and a Consular Report of Death of a US Citizen Abroad.

You can find more information on this topic here: 

https://travel.state.gov/content/travel/en/international-travel/while-abroad/death-abroad1/consular-report-of-death-of-a-u-s--citizen-abroad.html