united-states new-jersey trusts-and-estates
Does this require probate?
<p>Let's assume that Bob and Abby are a married couple. Bob's will leaves everything to Abby. Bob has a brokerage account solely in his name with no TOD on the account. Bob then dies. It is my understanding that for Abby to get the money, you have to go through probate. Am I right about that?</p>
<p>I have been told that when you are leaving everything to a spouse you can skip probate. I am thinking that is wrong. Bob should have had a TOD on his account but he did not hence in this case, probate is required.</p>

<blockquote>
<p>Bob's will leaves everything to Abby. Bob has a brokerage account
solely in his name with no TOD on the account. Bob then dies. It is my
understanding that for Abby to get the money, you have to go through
probate. Am I right about that?</p>
</blockquote>
<p>Yes, this has to go through probate.</p>
<blockquote>
<p>I have been told that when you are leaving everything to a spouse you
can skip probate. I am thinking that is wrong.</p>
</blockquote>
<p>You are correct.</p>
<p>This said, in a very small dollar estate (e.g. $20,000, with the actual dollar amount varying state by state), some states allow you to transfer assets by affidavit rather than via the probate process, if the sold heir at all and will beneficiary are the same and there are no unpaid creditors with a claim against those funds.</p>
<p>New Jersey has <a href="https://smallestates.uslegal.com/affidavits-and-summary-administration-laws/new-jersey-small-estates-law/" rel="noreferrer">two sets of small estate procedures</a> for estates under $50,000. The cutoff is sometimes $10,000, sometimes $20,000, and sometimes $50,000 depending upon the circumstances and the nature of the simplified process sought. It isn't clear to me that they apply in cases where the decedent has a will and therefore is not intestate.</p>
<blockquote>
<p>Small Estates General Summary: Small Estate laws were enacted in order
to enable heirs to obtain property of the deceased without probate, or
with shortened probate proceedings, provided certain conditions are
met. Small estates can be administered with less time and cost. If the
deceased had conveyed most property to a trust but there remains some
property, small estate laws may also be available. Small Estate
procedures may generally be used regardless of whether there was a
Will. In general, the two forms of small estate procedures are
recognized:</p>
<ol>
<li>Small Estate Affidavit -Some States allow an affidavit to be executed by the spouse and/or heirs of the deceased and present the
affidavit to the holder of property such as a bank to obtain property
of the deceased. Other states require that the affidavit be filed with
the Court. The main requirement before you may use an affidavit is
that the value of the personal and/or real property of the estate not
exceed a certain value.</li>
<li>Summary Administration -Some states allow a Summary administration. Some States recognize both the Small Estate affidavit and Summary
Administration, basing the requirement of which one to use on the
value of the estate. Example: If the estate value is 10,000 or less an
affidavit is allowed but if the value is between 10,000 to 20,000 a
summary administration is allowed.</li>
</ol>
<p>New Jersey Summary: Under New Jersey statute, where as estate is
valued at less than $50,000, a surviving spouse,  partner in a civil
union, or domestic partner, may present an affidavit of a small estate
before the Superior Court. Upon the execution and filing of the
affidavit, the surviving spouse shall have all of the rights, powers
and duties of an administrator duly appointed for the estate.</p>
<p>New Jersey: New Jersey requirements are set forth in the statutes
below.</p>
<p>TITLE 3B ADMINISTRATION OF ESTATES–DECEDENTS AND OTHERS</p>
<p>3B:10-3. When spouse, partner in a civil union, or domestic partner
entitled to assets without administration.</p>
<p><strong>Where the total value of the real and personal assets of the estate of</strong>
<strong>an intestate</strong> will not exceed $50,000, the surviving spouse, partner in
a civil union, or domestic partner upon the execution of an affidavit
before the Surrogate of the county where the intestate resided at his
death, or, if then nonresident in this State, where any of the assets
are located, or before the Superior Court, shall be entitled
absolutely to all the real and personal assets without administration,
and the assets of the estate up to $10,000 shall be free from all
debts <strong>of the intestate</strong>. Upon the execution and filing of the affidavit
as provided in this section, the surviving spouse, partner in a civil
union, or domestic partner shall have all of the rights, powers and
duties of an administrator duly appointed for the estate. The
surviving spouse, partner in a civil union, or domestic partner may be
sued and required to account as if he had been appointed administrator
by the Surrogate or the Superior Court. The affidavit shall state that
the affiant is the surviving spouse, partner in a civil union, or
domestic partner of the intestate and that <strong>the value of the</strong>
<strong>intestate’s real and personal assets will not exceed $50,000, and</strong>
<strong>shall set forth the residence of the intestate at his death</strong>, and
specifically the nature, location and value of <strong>the intestate’s</strong> real
and personal assets. The affidavit shall be filed and recorded in the
office of such Surrogate or, if the proceeding is before the Superior
Court, then in the office of the clerk of that court. Where the
affiant is domiciled outside this State, the Surrogate may authorize
in writing that the affidavit be executed in the affiant’s domicile
before any of the officers authorized by R.S.46:14-6.1 to take
acknowledgments or proofs.</p>
<p>amended 1983, c.246, s.1; 2004, c.132, s.77; 2005, c.331, s.24; 2015,
c.232, s.1.</p>
<p>3B:10-4. When heirs entitled to assets without administration</p>
<p>Where the total value of the real and personal assets of the estate of
an intestate <strong>will not exceed $20,000 and the intestate</strong> leaves no
surviving spouse, partner in a civil union, or domestic partner, and
one of his heirs shall have obtained the consent in writing of the
remaining heirs, if any, and shall have executed before the Surrogate
of the county where the intestate resided at his death, or, if then
nonresident in this State, where any of the intestate’s assets are
located, or before the Superior Court, the affidavit herein provided
for, shall be entitled to receive the assets of the intestate of the
benefit of all the heirs and creditors without administration or
entering into a bond. Upon executing the affidavit, and upon filing it
and the consent, he shall have all the rights, powers and duties of an
administrator duly appointed for the estate and may be sued and
required to account as if he had been appointed administrator by the
Surrogate or the Superior Court.</p>
<p>The affidavit shall set forth the residence of the intestate at his
death, the names, residences and relationships of all of the heirs and
specifically the nature, location and value of the real and personal
assets and also a statement that the value of the intestate’s real and
personal assets will not exceed $20,000.</p>
<p>The consent and the affidavit shall be filed and recorded, in the
office of the Surrogate or, if the proceeding is before the Superior
Court, then in the office of the clerk of that court. Where the
affiant is domiciled outside this State, the Surrogate may authorize
in writing that the affidavit be executed in the affiant’s domicile
before any of the officers authorized by R.S.46:14-6.1 to take
acknowledgments or proofs.</p>
<p>amended 1983, c.246, s.2; 2004, c.132, s.78; 2005, c.331, s.25; 2015,
c.232, s.2.</p>
<p>The consent and the affidavit shall be filed and recorded, in the
office of the surrogate or, if the proceeding is before the Superior
Court, then in the office of the clerk of that court. Where the
affiant is domiciled outside this State, the surrogate may authorize
in writing that the affidavit be executed in the affiant’s domicile
before any of the officers authorized by R.S. 46:14-7 and R.S. 46:14-8
to take acknowledgments or proofs.</p>
</blockquote>
