Continued from last week…

When the debts of an estate are uncertain, an executor AKA Personal Representative may apply with the Surrogate for an Order Limiting Creditors. This order is simply a notice to creditors that they are to present to the fiduciary within 6 months of the date of the order their claims in writing, under oath, specifying the amount claimed by them and the particulars of the claim. This enables the fiduciary to determine within a reasonable length of time whether the estate is solvent. It also assists the fiduciary in settling the estate without any undue delay. If an Order Limiting Creditors has been filed and the claim of a creditor is not presented within 6 months, then the fiduciary can distribute assets and not be liable to any creditor who has presented a claim. If a claim is presented to a fiduciary, it need not be accepted. The fiduciary has 3 months in which to dispute the claim. If the claim is disputed, then the claimant must commence an action on the claim within 3 months after receiving the notice of dispute. If the creditor does not commence an action within that time, the fiduciary would not be liable to him/her with respect to assets delivered or paid over before the commencement of any action.

After the Will has been entered into Probate, the executor must within 60 days of the date of the probate do Notice of Probate (R.4:80-6) to all beneficiaries under the Will and to all persons who would have inherited by intestacy (those next of kin listed on the Application For Probate). The notice in writing will state that the Will has been probated, the place and date of probate, the name and address of the executor and a statement that a copy of the Will shall be furnished upon request. A proof of mailing must be filed with the Surrogate within ten days thereof. If the names and addresses of any of those persons are not known, or cannot by reasonable inquiry be determined, then a Notice of Probate of the Will must be published in a newspaper of general circulation in the county naming or identifying those persons as having a possible interest in the probate estate. If by the terms of the Will property is devolved to a present or future charitable use or purpose, like notice and a copy of the Will must be mailed to the Attorney General of the State of New Jersey.

The executor AKA Personal Representative is required to pay the debts of the decedent and any taxes due, to perform a Child Support Judgment search on each beneficiary, to make distribution to the beneficiaries, and if required, to provide an accounting of his/her administration of the estate. An informal accounting may be requested by only the next-of-kin given on the Application for Probate or beneficiaries named under the Will and should not be requested until one year from date of probate. If the executor AKA Personal Representative refuses to comply with the request, an action may be brought in the Superior Court Probate Part for a formal accounting.

A Surrogate will deny probate of a Will if the Will was not properly executed or the witnesses cannot be located and proper execution cannot be proven.

The Surrogate may not act when (1) a caveat is filed before entry of the judgment (2) a doubt arises on the face of the Will or a copy of the Will is presented (3) a non-resident’s Will is offered for probate and has no assets in that county (4) the Surrogate certifies the case to be one of doubt or difficulty; or (4) a dispute arises as to any matter.

If, after a Will has been probated, another Will of a later date is found or if, after letters of administration have been granted, the existence of a Will is discovered, a Complaint and Order To Show Cause must be filed with the Superior Court- Probate Part. If on the return date, any person in interest contests the admission to probate of the after-discovered Will, the procedure followed is that of any other Will contest. If no contest is lodged, the later Will is proven before the Court. The estate will then be administered and distributed according to the terms of the after-discovered Will.

It should be noted that all papers that are filed with the Superior Court-Probate Part are filed with the Surrogate who is Deputy Clerk of that Court.

Succeeding executor occurs when a prior executor who had qualified has died.

The Bonfrisco Law Firm is a member of the American Academy of Estate Planning Attorneys.

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