What if I Can’t Find the Original Will? Part 2

In my post last week I began discussing the options to probate when an original will can’t be located.  Probate in New Jersey tends to be relatively inexpensive in comparison to many other states because appearances before a judge aren’t normally necessary and a bond isn’t usually required unless you can’t find the will. 

Letters of administration can be applied for if no will is located by making an application to the Surrogate.  An administrator serves in the same role as does an executor.   New Jersey statute establishes who has the right to apply first, which is determined by closeness of relationship to the person who died (the decedent).  If, for example, the decedent had 6 children who all have equal right to serve but only one applies for the appointment, the others must sign a document declining to serve – known as a renunciation. 

If any of them refuse to sign or cannot be located then the application must be made to a judge on notice to all parties who have an equal or greater right to serve.  Any party can oppose the application or request instead to be appointed and that’s where it can get quite messy and expensive.  The administrator must post a bond.  If the proposed administrator cannot qualify for a bond then he/she will not be able to serve.  This might be because of a criminal record or bankruptcy filing in the last several years.

But, what if the estate is very small?  Can the administration process be avoided?  Yes, in certain cases.  If there is a surviving spouse and the estate is not more than $50,000, the spouse may sign an affidavit which is then filed with the Surrogate.  This will allow the spouse to access the estate assets without the need for letters of administration.  The affidavit must specify the nature, location and value of the assets, including both real and personal property. Where there is no spouse and the total estate is not more than $20,000, then one of the heirs may sign an affidavit similar to the one signed by the surviving spouse and gain access to the assets.  In the above example, if there are 6 children then one may file the affidavit only if the other 5 consent in writing.  The affidavit must also specify the nature, location and value of the assets.  In this way, the cost of the administration process including the bond can be avoided