Atlantic County Surrogate

Where There’s A Will . . . There’s A Way!

Almost everyone owns something . . . and therefore, has an “estate”. It is your right to select the person(s) to whom your estate will go upon your death. There are several ways this can be done:

• Create a trust
• Create a joint tenancy
• Draw a will

- or -

Do nothing and allow the laws to control how your estate will be distributed!

What Is A Will?

It is a legally enforceable written document appointing an executor and/or disposing of a person’s estate, which takes effect on being probated after a person’s death.

Remember . . . It frequently costs more not to have a will. If your estate requires review by the courts, if there is a disagreement among the heirs as to who is to be the administrator or any other disagreement over the estate, the costs of litigation will far exceed the cost of having a valid will drawn.

In the absence of a will, another added cost is that of a bond which could be required with a court appointed administrator.

Avoid Confusion And Delays - Have A Will!

Since a will is one of the most important documents you will ever sign, it is advisable to have the assistance of an attorney in its preparation.

This booklet has been prepared for your use with our compliments. We suggest that you read it carefully. It gives a brief outline of the New Jersey laws relating to inheritance and the various types of wills valid in New Jersey.

By Drawing A Will You Can...

• Decide and direct the distribution of your property.
• Select the person you want to administer your estate.
• Have the estate administered in an orderly manner.
• Avoid the expense of a bond for an administrator. (NOTE: No bond is required for a surviving spouse of a decedent who died on or after January 1, 1985 providing the surviving spouse would inherit the entire estate.)
• Prevent your surviving spouse or children from squandering the estate, by providing that you children are not to receive their entire share until they are older than eighteen.
• Spread distribution of your estate over a period of years.
• Take advantage of the various tax laws so as to reduce taxes.
• Appoint a guardian for your minor children, providing you are the surviving parent at the time of death.

Your Will

In New Jersey, any person 18 or more years of age who is of sound mind may make a will. Physical incapacity or infirmity does not disqualify a person from making a will.

The will must be in writing. As of this date, oral or video wills are not valid in New Jersey.

Execution of A Will

The will, to be properly executed, must:
• Be signed by the testator or by some other person in his/her presence and at his/her direction.
• Be signed by a least 2 persons, each of whom witnessed either the signing or the testator’s acknowledgement of his/ her signature or of the will.

Exception: If the material provisions of the will are wholly in the handwriting of the testator, no witnesses are required (although it is advisable to have two witnesses). This is called a holographic will. If there are no witnesses or only one, the instrument can be determined to be a valid will upon proper proof being presented to the Superior Court on notice to all the intestate heirs.

• The best place to keep your original will is in a safe deposit box and make sure you tell your executor of its location.

Devise Of Tangible Personal Property By Separate Writing

A will may refer to a written statement or list to dispose of items of tangible personal property, (e.g. jewelry/collections), other than money, evidence of indebtedness, documents of title and securities or items used in trade or business.

The list must either be in the handwriting of the decedent or signed by the decedent, and must describe the items and devises with reasonable certainty.

The list may be prepared before or after the execution of the will and may be altered by the testator at any time.

Duties Of An Executor/Administrator An executor or administrator bears the responsibility of carrying out the instructions in the will. All of the assets of the decedent are to be collected and protected. Valid debts and taxes are to be paid if there are sufficient funds; tax returns, where applicable, are to be filed and taxes paid; all proper parties are to be notified of the probate of the will; final distribution is to be made to the beneficiaries and heirs.

Commissions: An executor or administrator is entitled under the law to take a 6% commission on any income received during the course of the administration and 5% on the gross corpus receipts up to $200,000; 3 1/2% on amounts between $200,000 and one million; 2% on amounts over 1 million.

If there are two or more fiduciaries, an additional 1% may be taken.

Letter Of Last Instructions

Few persons expect to die when they do, and therefore relatively few leave their affairs in perfect order.

Those who administer an estate frequently find themselves without necessary information. To make their job easier, it is advisable to give your executor or attorney a letter of last instructions. This letter is separate and apart from your will, and should be placed in an envelope separate from your will.

This letter should contain, at a minimum the following information:

• Name, addresses and phone numbers of closest family members and other persons to be notified of your death.

• Funeral and burial instructions, cemetery location and deed.

Location of:

• your will, deeds, mortgages and the like
• automobile registration
• birth and similar certificates
• safe deposit box and key
• banks
• check book, statements of account, passbook, stock certificates
• insurance policy and agent’s name
• last employer’s name and address
• retirement, pension, social security information
• Veterans discharge papers
• income tax returns
• credit cards and statements

Probate of Will (Proof of Valid Execution)

To probate a will, one of the subscribing witnesses must appear in the Surrogate’s Office and sign a deposition relating the facts surrounding the execution of the will. If a witness does not reside in Atlantic County, the Surrogate arranges for the witness to be deposed in the jurisdiction in which he or she resides.

Exception: If the will is “self-proved” the above procedure is not required.


A witnessed will may be made self-proving by attaching to the will affidavits of the witnesses and an acknowledgement by the testator or his/her signature. The acknowledgement and affidavits must be made before an officer authorized to take acknowledgements pursuant to New Jersey statutes and must be in the form prescribed by law. Wills which are self-proved can be admitted to probate without the appearance of one of the witnesses to prove the will.

Wills may be self-proved at the time of formal execution or at a subsequent time using this procedure.

Wills may be self-proved using different witnesses than on the original document, so long as the proper acknowledge- ment is made by the parties involved.

Review Your Will Periodically

Has any child been born or adopted after you executed the will? If so, such child would receive a share in the estate equal to his share if you had died without a will. (And if your will had, for example, left everything to your spouse, the after-born child would inherit part of the amount which you wanted your spouse to inherit).

Has any person to whom you made a testamentary gift died? If so, you might want to change the name of the beneficiary by way of a codicil. If not, the gift would probably become a part of your residuary estate.

Has your named executor died, moved, or in any way become unavailable? If so, and no alternate has been appointed, appoint another.

Have you been divorced since the execution of your will? If so, any disposition to your former spouse and appointment of spouse as executor is invalidated unless the will explicitly states otherwise.

Have all of the witnesses died . . . or become unavailable? If so, secure new witnesses and, if possible, execute a self-proving affidavit.

Have tax laws changed so as to affect your estate? If so, have your will rewritten to take advantage of the new laws.

Some Points To Remember

• A person must survive a decedent by 120 hours to inherit from said person

• Your will is not recorded prior to your death! No one need know of it nor its contents before your death, unless you so desire. However, once the will is probated it is a matter of public record.

• Your will is of no effect during your lifetime...it only affects the property you own - in you own name individually - as of the date of your death.

• Your will is not a fixed document . . . you can, at any time during your lifetime, change it by drawing a later will, or by burning it, canceling it, tearing it, obliterating it or destroying it in any way with the intent of revoking it or any part of it.

• Your will is viable and valid until legally changed or cancelled.

Changing A Will

Best Way is to have a new will or a codicil drawn.

Codicil must be executed with the same formalities by which a will is executed and must refer to the will by date and ratify the will.

Do not make alterations on the will itself or its validity may be destroyed.

If You Die Without A Will (Intestate) prior to February 27, 2005*

Your property, real and personal, is distributed according to the intestacy laws.

The share of a surviving spouse depends upon what other of the decedent’s heirs also survive.

If a Decedent left a Surviving Spouse and:

• No Issue or Parent: Surviving spouse receives entire estate.

• Issue of Surviving Spouse and Decedent: Surviving spouse receives $50,000 and half of the remainder. Issue share the other half.

• No joint Issue but a Parent or Parents: Surviving spouse receives $50,000. Surviving spouse and parents share the remaining estate 50-50.

• One or more Issue not Survivor’s Issue: Surviving spouse receives half of the estate and decedent’s issue share other half.

*If You Die Without A Will on or after to February 27, 2005 contact the Surrogate's Office at (609) 645-5800

If Decedent Left No Surviving Spouse

• Issue of Decedent Survive: Issue receive entire estate

• No Issue Survive - Parent(s) Survive: Parent(s) receive entire estate.

• No Issue or Parent(s) Survive: Issue of parents (decedent’s brothers and sisters) receive entire estate.

Further Distribution is Set Forth In The Statutes.
• If decedent was single (no spouse, no issue):

Parent or Parents Survive: Parents receive entire estate.

No Parent: Parent’s issue take all (brothers and sisters of decedent)

Further distribution is set forth in the statutes, but if no issue of grandparents survive, the State of New Jersey receives entire estate. The following chart sets out the heirs-at-law who are within this limitation:

Administration Proceedings (When there is no will)

The closest living intestate heir of the decedent is entitled to be appointed administrator of the estate.

The order of priority to act as follows:

First Entitled: Spouse of deceased
Next: Children of deceased
Next: Parents of deceased
Next: Brothers and sisters of deceased
Next: Other intestate heir closest in degree

Any person who is first entitled to serve may renounce the office by filing a Renunciation with the Surrogate. Once the Renunciation is filed, the person(s) next in line may apply and the person or persons so entitled to serve may be appointed by the Surrogate.

The applicant should bring with him/her to the Surrogate’s Office when application is made:

• Death certificate (certified copy)
• An estimate of the approximate value of estate and of the debts and taxes due
• At least $40.00 for Surrogate's costs

When Letters Of Administration Are Not Required

Administration is not required where the total value of the real and personal assets of the estate of one dying without a valid will does not exceed $10,000.00 and the decedent leaves a surviving spouse. In such case, the surviving spouse, upon the execution of an affidavit before the Surrogate, is entitled absolutely to such assets without administration and the assets up to $5,000.00 shall be free from the lien of all debts of the decedent. (N.J.S.A. 3B:10-3)

Where the total value of the real and personal assets of the estate of an intestate will not exceed $5,000.00 and the intestate leaves no surviving spouse, and one of his/her heirs obtains the consent in writing of the remaining heirs, if any, and executes before the Surrogate an affidavit, he/she shall be entitled to receive the assets of the intestate for the benefit of all the heirs and creditors without administration or entering into a bond. (N.J.S.A. 3B:10-4)

If the affiant is domiciled outside the state of New Jersey, the Surrogate may authorize, in writing, execution of the affidavit before a proper authority in the other jurisdiction.

Remember - This procedure is only available in cases where no valid will exists.

Glossary

Administrator/Administratrix: person or institution appointed by the court to manage and distribute the estate of person who dies without a will.

Beneficiary: person named to receive property or benefits.

Bequest: gift of personal property by will.

Codicil: an addition or supplement made to change or add a provision to a will.

Decedent: a deceased person.

Devise: a gift of real estate by will.

Estate: everything a person owns, all real and personal property.

Executor/Executrix: a person or institution named in the will to carry out the provisions and directions of the will.

Heir: those persons who are entitled under the statutes of intestate succession to the property of a decedent.

Intestate: to die without a valid will.

Issue: a person’s direct descendents.

Legal Guardian: a person who acts in a fiduciary capacity for a minor or mental incompetent.

Personal Property: intangible property, such as: stocks, bonds or bank accounts, and tangible property, such as: furniture, automobiles and jewelry.

Probate: official proof of the genuineness of will.

Surrogate: a judicial officer who has the jurisdiction over the probate of wills and administration of estates.

Testator/Testatrix: the person who makes a will.

Testate: to die leaving a valid will.

Trust: property owned and managed by one person for the benefit of another.

Will: a legal declaration of the manner in which a person wishes his/her estate to be divided after death.

New Jersey Inheritance Tax Rates (Applicable to estates of decedents dying on or after January 1, 1985)

Husband/Wife: After January 1, 1985, transfers are totally exempt.

Class A: Beneficiaries: Father, mother, grandparents, natural or legally adopted child or issue of said child or decedent step-child and certain mutually acknowledged children.

No tax on transfers to any of this class if decedent died on or after July 1, 1988.

Class C: Brother or sister of a decedent, spouse of a child of a decedent: $25,000 exemption of transfers if decedent died on or after July 1, 1988. Rate starts at 11% on amounts over $25,000.

Class D: Any other transferee, distributee or beneficiary (other than those entirely exempt such as charities and government agencies listed in class E) - $499.00 exempt, rate starts at 15%.