Myths About the Probate Process in New Jersey

Probate is the court-supervised process that legally validates a deceased person’s will so an administrator can settle debts and distribute property to heirs. Probate laws vary by state, which can create confusion about which laws apply to a specific situation. Many families are left uncertain about which laws apply to them. As an experienced NJ estate law attorney, Veitengruber Law works closely with clients to clear up any misconceptions around the probate process in New Jersey.

Here, we explain the reality of some of the most frequent misconceptions we see with clients in our office:

Myth 1: The court gets full control of an estate during probate.

Many people believe that as soon as someone dies, the court takes oversight of their entire estate. In New Jersey, the court has less direct oversight of estate settlement and is more involved in appointing an executor to manage the estate. The executor can go to the county Surrogate’s office with the original will, original death certificate, a completed application, and a check for the processing fee. The Surrogate’s office will issue “letters testamentary” and “short certificates.”

These documents allow the executor the authority to settle debts, distribute assets to heirs, and otherwise settle the estate. If there is a will in place and no disputes are brought forth, the courts are relatively hands-off the entire process. The executor administering the will is more hands-on than the courts.

Myth 2: Probate is expensive and time-consuming.

Unless there are major disputes with the will or complex litigation involving an estate, the probate process is generally straightforward and has moderate fees. The entire probate process can be completed within a few days as long as all documentation is completed correctly. While probate is generally quick, estate administration can take longer depending on the specific circumstances. If the estate is smaller or less complex, executors can expect to settle it in just a few months. The more complications and problems, the longer it will take to settle the estate.

Similarly, while probate filing fees in most NJ counties are moderate, the higher costs of settling an estate generally come from other parts of the administrative process, like paying off debts, meeting tax obligations, and managing real estate interests.

Myth 3: Every asset in an estate goes through probate.

Not every asset included in an estate will go through the probate process. Generally, wills only cover what is known as a “probate asset,” or property owned individually by a person that does not already have a designated beneficiary or a joint owner. Assets with named beneficiaries—like life insurance, 401(k)s, and other retirement accounts—bypass probate completely and are distributed under the most recent beneficiary designations. Similarly, property owned jointly with survivorship rights will skip probate. If, however, no beneficiary is named on these accounts or the named beneficiary is also deceased, the account enters the probate process.

Myth 4: The oldest child is automatically the executor.

No law requires any one person to serve as the executor of an estate. While the will often names the eldest child to administer the estate because of typical family dynamics, that doesn’t have to be the case. The executor doesn’t even need to be a family member. An executor can be a close family friend or a trusted professional. You should name an executor you trust to act responsibly and handle the complexities of settling your estate.

Myth 5: I should put my assets in a trust to avoid probate.

Trusts are excellent estate planning tools that help many individuals protect assets and avoid legal complications or taxes. While that is true for many people doing estate planning, it isn't true for everyone. A trust won’t be necessary or even ideal for every family. Many estates can be handled smoothly with other estate planning tools. This is why it is important to work with an experienced NJ estate planning attorney who understands how to protect your interests within NJ estate law.

An estate lawyer can help the probate process go smoothly by ensuring all required documents are filed promptly, guiding executors through each step, resolving unexpected issues efficiently, and minimizing costly delays or mistakes. An estate attorney can work with you now to develop the right estate plan to protect your assets and work with your family after you are gone to ensure your affairs are settled correctly.



When you need a skilled estate planning attorney in New Jersey, Veitengruber Law can help. Contact us today to schedule a consultation and take the first step toward peace of mind for you and your loved ones.