What Happens If You Die Without a Will in New Jersey?


Did you know that New Jersey has 44 beaches, 130 miles of coastline, more than 1,700 historic landmarks, and more than nine million people? In fact, New Jersey is the most densely populated U.S. state or territory, outside of Washington, D.C..

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What New Jersey does not have is a lot of wills. While there are millions of people in New Jersey, many of these people do not have a will. A will is a legal document that defines how you want your assets -- your stuff, money, and property -- distributed after you die. 

If you are one of the millions who call the Garden State home, this article is for you. Read on to discover what happens if you die without a will in New Jersey.

New Jersey's Intestacy Laws Explained

If a person dies without a will, they are said to have died "intestate." Every state has its own laws regarding how to divvy up the estate of a person who died intestate. These laws are called "intestacy laws." If you die without a will in New Jersey, the state's intestacy laws will determine what happens to your property.  

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How Does Probate Work in New Jersey If There Is No Will?

Probate is the judicial process of settling the deceased person's estate. It defines how the family pays the deceased's debts and how property is distributed to the heirs. The term "estate" includes the deceased person's real estate and personal property.

Not all property passes through probate. Some property automatically transfers ownership when a person dies, such as IRAs and insurance policies, which have named beneficiaries. 

Settling an estate generally means gathering the deceased's property, paying creditors, distributing any remaining property to the appropriate people, and filling the appropriate paperwork with the court.

In New Jersey, two different courts handle probate matters:

  • The Surrogate Courts
  • The Superior Court, Chancery Division, Probate Part

The Surrogate Courts handle most probate matters. Every county in New Jersey has its own Surrogate Court. A surrogate is an elected county official who oversees the administration of estates in New Jersey. They also determine whether an estate needs an administrator – depending on the size of the estate – and appoint one if necessary.

Assets less than $20,000

Not all estates need an administrator, namely small estates. In New Jersey, a close relative may apply for an "Affidavit of Next of Kin," which names them as the person who must handle the deceased family member’s property. The affidavit allows them to dispose of the property without having to be appointed administrator and go through the probate administration process. 

This can happen if the following is true about the deceased:

  • They died without a will
  • Their assets total less than $20,000
  • They have no surviving spouse or partner

When filing an affidavit with the court, the relative must "specifically list the intestate’s assets, their nature, location, value and set forth the residence of the intestate at the time of his/her death." If the assets exceed $20,000 and a relative files an application for general administration, the surrogate will appoint an administrator.

Assets less than $50,000

In New Jersey, a surviving spouse/partner can file for an "Affidavit of Surviving Spouse, Partner in a Civil Union or Domestic Partner" to handle their deceased spouse’s/partner’s property if the following is true:

  • Their spouse/partner died without a will
  • Their assets total less than $50,000

When filing an affidavit with the court, the surviving spouse must provide specific information to the court about the intestate’s assets, including their nature, location, and value.

If there is a surviving spouse and/or partner and the assets exceed $50,000, the spouse/partner must apply for general administration. They also have the right to be appointed administrator.

Once the court appoints an administrator, the administrator must fulfill the following responsibilities:

  • Identifying all of the estate's assets
  • Paying all debts, expenses, and taxes
  • Filing all necessary state and federal tax forms and paying any taxes
  • Informal accounting of the estate assets. The court may also compel a formal accounting
  • Distributing the estate per New Jersey intestacy laws

Administration can be a complex process. If you are appointed to be the administrator of a loved one's estate and have questions, you can get help from probate attorneys, accountants, and other professionals. 

Who Typically Inherits Assets in New Jersey If There Isn't a Will?

If a person dies without a will, decisions about inheritance typically depend on the deceased's familial status, namely, whether or not the deceased had a surviving spouse, domestic partner, civil union partner, and/or children. As we move through this discussion, remember that the term "decedent" refers to the deceased person. 

In addition to the deceased's children, other relatives or descendants may be entitled to inherit. A person's descendants are "all of his progeny of all generations, with the relationship of parent and child." This would include a deceased's children, grandchildren, great-grandchildren, and so on.

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Surviving spouse/partner

In New Jersey, the surviving spouse or domestic partner may inherit in one of the following ways:

  1. The entire estate if:
    1. No descendant or parent of the decedent survives the decedent.
    2. The decedent's surviving descendants are children they had with that surviving spouse/domestic partner, and the surviving spouse doesn't have any other children.
  2. The first 25% of the estate(between $50,000 and $200,000), plus three-fourths of any balance of the remainder, if there are no surviving children/grandchildren, there is a surviving parent.
  3. The first 25% of the estate (between $50,000 and $200,000), plus one-half of the remainder if:
    1. All of the decedent's surviving children/grandchildren are also from the spouse/domestic partner, and the spouse/partner has one or more other children.
    2. One or more of the decedent's children/grandchildren is not from the spouse/partner.

Other heirs

In New Jersey, any part of the estate that doesn't go to the surviving spouse/partner goes to these people in the following order of priority:

  1. To the decedent's children/grandchildren (their descendants).
  2. If there are no surviving children/grandchildren, everything goes to the deceased's parent or parents.
  3. If there are no surviving descendants or parents, everything goes to the siblings.
  4. If there are no surviving descendants, parents, or siblings, half of the estate passes to the paternal grandparents, and the other half goes to the maternal grandparents.
  5. If there are no surviving descendants, parents, siblings, or grandparents, everything goes to the surviving aunts/uncles.
  6. If there are no surviving aunts/uncles, everything goes to the deceased's step-children or their descendants.

Handling estate matters can be overwhelming. If you are confused about how the state may distribute your assets without a will, now is the time to talk to an estate planning attorney. An estate planning attorney can answer your questions and help you formulate a plan for your assets. 

Frequently Asked Questions: Dying Without a Will in New Jersey

It is normal to have questions during the estate administration process. Here, we will review frequently asked questions about dying without a will in New Jersey. 

What happens when your parent dies without a will?

The loss of a parent can be a difficult experience. The experience can become even more complicated if your parent dies without a will.

As discussed above, if your parent dies without a will in New Jersey, then New Jersey's intestacy laws will determine what happens to their estate. A lot also depends on three things:

  • Whether your parent had a surviving spouse or partner
  • How you are related to your parent's surviving spouse/partner
  • If there are any other descendants

If you are concerned about what will happen to your parent's property if they die without a will, now is the best time to talk to your parent, so you can explain your concerns and listen to your parent's opinions.

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What are a surviving spouse’s rights if there’s no will?

The surviving spouse/partner has a lot of rights, even in the absence of a will. If you are curious about their rights, refer to the above subsection entitled "Surviving Spouse/Partner." 

Remember, the best time to address inheritance issues is before a person dies. If you or your spouse/partner are concerned about your share of the estate, you should address the matter now.

The Cake planning platform is an excellent resource for couples starting their estate planning journey. Couples and individuals can use the website to create and save documents explaining their decisions. 

Are there any probate exemptions if you die without a will in New Jersey?

In New Jersey, not all property has to go through probate. If you die without a will, certain assets pass automatically, including the following:

  • Proceeds from retirement accounts
  • Property held in trust
  • Property owned as a "joint tenancy with right of survivorship"
  • Joint bank accounts
  • Proceeds from life insurance policies

Contact a probate attorney if you have questions about whether a particular property is exempt from probate. They can answer your questions and provide advice regarding your concerns. 

How long does probate take when there is no will?

A complicated estate and conflict among heirs can prolong probate, but in most instances, the probate process should take less than a year.

Keep in mind that it's impossible to settle an estate overnight. Gathering documents and accessing accounts takes time. Additionally, the administrator must give creditors time to make their claims against the estate.

Who is considered next of kin in New Jersey?

The phrase "next of kin" can mean a lot of different things. Generally, "next of kin" refers to a person's closest living relatives. 

In the context of estate planning, "next of kin" typically describes all living relatives who could inherit from an estate. In New Jersey, this includes a person's surviving spouse/partner and/or children. 

There's Only One of You

New Jersey is very impressive when you consider its numbers. What is even more amazing is you. There is only one of you. 

When you are thinking about estate planning and what will happen after you are gone, remember that there is only one of you. You are a unique individual, and the decisions about your estate are unique to you. Only you can decide if you need a will. What do you want to do?

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