by Thomas D. Begley, Jr., CELA
Situations requiring probate counsel include:
- Wrongful Death Cases
- Plaintiff Dies During Litigation
- Settlements for Minor or Incapacitated Persons
- Multijurisdictional Litigation Involving Probate
The Executor/Administrator’s job is to perform certain legal obligations. An Executor/Administrator can be held personally liable for failure to administer the estate properly. Administration of the estate includes the collection and management of assets, paying taxes, distributing any assets or making distributions of bequests, whether personal or charitable in nature, as the deceased directed under the provisions of the Will or as provided for in the Intestate law. Important steps in probate include the following: Probate of the Will or Application for Letters of Administration, preparation and filing of a Notice of Probate, compilation of an inventory of all estate assets, obtaining appraisals of real and personal property, obtain date of death values of all estate assets, obtaining an employer identification number, investment of estate assets during the course of administration, analysis of retirement plan assets, filing claims for life insurance, and preserving and managing estate assets. The Executor/Administrator must also file federal and state income tax returns (Form 1040) for the year of the decedent’s death. The Executor/Administrator can file these returns or arrange for the decedent’s usual tax preparer to do so. Form 1040 Estimated Tax Returns must also be filed, where appropriate. These returns must be filed by April 15 of the year following the decedent’s death. New Jersey estate tax and inheritance tax returns must be filed. The New Jersey estate tax return must be filed within 9 months of the date of the decedent’s death, and the New Jersey inheritance tax return must be filed within 8 months. Federal estate tax returns (Form 706) must be filed where required. This return must be filed within 9 months of the date of the decedent’s death. Income tax returns (Form 1041) must be filed for any estate or trust. Gift tax returns (Form 709) must be filed where appropriate. In addition, if the decedent owned real estate out of state, the Executor/Administrator must file ancillary probate in that state, and file non-resident tax returns in that state. The Executor/Administrator must also determine whether any beneficiary has outstanding child support obligations. Finally, the Executor/Administrator must file an accounting for all of the funds that were handled during the administration of the estate.