Friday, August 18, 2017

New Jersey Probate & Estate Administration: What Is Intestacy?

Pursuant to the New Jersey Probate Code, any part of a decedent’s estate not effectively disposed of by his or her Will passes by “intestate succession” to the decedent’s heirs. The intestate succession statutes provide rules and procedures for the disposition of the estate of an individual who pass away without an effective Will, and act as an “estate plan provided by law” to transfer the decedent’s property.

For decedent’s dying on or after September 1, 1978, the intestate share of the surviving spouse or domestic partner may be the entire estate, or a varying percentage of the estate, depending upon whether there are surviving descendants or parents of the decedent, and whether any of the decedent’s surviving descendants are not descendants of the surviving spouse. Any part of the intestate estate that does not pass to the decedent’s surviving spouse or domestic partner, or the entire estate if there is no surviving spouse or domestic partner, passes in the following order to the individuals designated below who survive the decedent:
  1. To the decedent’s descendants by representation;
  2. If there are no surviving descendants, to the decedent’s parents equally or to the surviving parent;
  3. If no surviving descendants or parents, to the descendants of the decedent’s parents or either of them by representation;
  4. If no surviving descendant, parent, or descendant of a parent, to the decedent’s grandparents as specified by the statute with reference to the maternal and paternal side,
  5. If none of the above, to the descendants of the decedent’s grandparents depending upon the “degree of kinship,”
  6. Or, if none of the above, to the decedent’s step-children or their descendants by representation.
As can be imagined, it is not always a simple process to determine how, or in what shares, a decedent’s estate will be distributed in accordance with the laws of intestacy; however, the New Jersey Probate Code contemplates most complications within the family unit – for example, the intestacy statutes address the disposition of an estate where “relatives of the half blood,” after-born heirs, or adopted children are involved, where the names and addresses of potential heirs are unknown, or where there is a dispute regarding the paternity of the decedent or descendant of the decedent. It is important to point out that the intestacy laws are applied without discretion –for example, the law does not consider whether or not you got along with (or you ever met) the heir who may be a beneficiary of your intestate estate.

Avoiding the laws of intestacy, and some of the bizarre results that may occur upon application of the statutes, is one of the many reasons why you should have a competent attorney prepare your Will. Having a Will is not only important for the elderly or people with wealth – if you are over the age of eighteen (18), you should have a Will, regardless of whether or not you have assets.

Because estate administration, estate litigation, and Will contests require particular knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, your or your loved one’s Power of Attorney, suspicions of undue influence, the probate process, administration of an estate or trust, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for removing an executor or administrator from office. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  –  2017  –  All Rights Reserved

Probate / Estate Practice Areas: Will contests and disputes, caveats, the elective share, undue influence claims, Power of Attorney abuse and inter vivos gift disputes, drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, actions to compel an inventory, actions to remove a fiduciary, insolvency petitions, ejectment and eviction from estate or trust property, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

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