Typically, when a person dies without a Last Will and Testament, the person who will be acting as the executor needs to apply to the local Surrogate’s Court for the Letters of Administration. (Technically speaking, if there is no will, the executor is called an “administrator,” but that’s a different blog post.)
There are three common exceptions to the requirement to apply for the letters of administration:
- If the person died and didn’t own anything. This means the person didn’t have a car, didn’t have a bank account, didn’t own a house. Nothing.
- Where the decedent is survived by their spouse and the decedent has less than $50,000 in assets.
- Where the decedent has less than $20,000.
In this article, we’re only going to talk about what happens in the second situation, where a decedent has less than $20,000 and a surviving spouse and what steps the spouse needs to take to clear out their deceased spouse’s estate without applying for probate or going through the general estate administration process.
Requirements Where There is a Surviving Spouse:
- No Will
- Surviving spouse, partner in a civil union, or a registered domestic partner
- Less than $50,000 in real and personal assets
What Do You Have to Do?
Before doing anything, you’ll need to create an inventory of the decedent’s assets. This means gathering everything that the decedent owned solely in his or her name, or with another person as tenants in common and assigning each item a value.
Here are just a few common assets to keep in mind:
- Bank accounts;
- Vehicles, RVs, ATVs, boats;
- Houses, condos, land, or other property
- Savings bonds, Treasury Bonds, T-Bills, etc.;
After you have assigned a value to each item, you’ll need to add all those values together and come up with an estimated grand total value of the decedent’s estate.
This might look something like this:
2001 Honda Civic
Blue, Vin # xxxx
1999 Harley Davisdon
1 gold wedding ring
1 row boat
wood, missing 1 oar
metal, wood, old
At first glance, you might notice that there are a few obvious things missing: a house, an IRA, and life insurance. A house is not included in this calculation because the spouse was named on the deed and receives the house automatically through the rights of survivorship. The IRA and the life insurance policy were left directly to the spouse as a named beneficiary, therefore they were not included in the Estate.
The inventory only includes items that the decedent owned in their own name or as a co-tenant. In this example, the decedent was the only person named on the titles to the car and the motorcycle, so those assets must be listed on the affidavit. The bank accounts were also only in the decedent’s name; therefore, they must also be listed.
Create the Affidavit
Once you have totaled the decedent’s assets and determined that they are valued at less than $50,000, you can create the Small Estate Affidavit. Warren County, NJ has a helpful fact sheet available here (as of January 18, 2019), but other counties also provide a similar sample document that is sometimes called the “Affidavit of Spouse,” or “Affidavit of Surviving Spouse.”
If you complete the Estate Information Sheet correctly, many counties will assist you in creating the Affidavit necessary to conduct a small estate administration.
Go to the Surrogate’s Court
The Surrogate’s Court will often assist in completing the Affidavit of Spouse, which will then need to be signed in front of the Surrogate and notarized. After that, the Affidavit will then need to be filed with the Surrogate’s Office, or in the clerk of the Superior Court if your estate matter appeared in that Court for other reasons.
What Happens Next
You are entitled to receive all the money and assets within the decedent’s estate. However, only the first $10,000 will be yours free and clear. From dollar $10,000.01, you must use the excess funds to pay any of the decedent’s debts.
In some instances, not all money that is left in the decedent’s name is a part of the decedent’s estate and can be inherited by the spouse. In a 1992 court case, Laves v. Briggs, the Superior Court required a widow to pay to Doctor’s treating her late husband $676.72 plus the attorneys’ fees and costs of the litigation. This was an unusual circumstance where the spouse and the decedent were separated at the time of death, the decedent had insurance that covered the medical expenses, the insurance company sent a check to the decedent for those medical expenses, and the decedent’s estranged spouse deposited those checks and claimed that they were a part of the estate that passed free from debt. The Court did not agree because the couple was estranged and because the money was insurance proceeds intended to pay the doctors for their services.
What About Debts?
When a person dies with debt, the debt must be paid to the extent possible. It is not uncommon for a person’s debts to exceed their estate’s value. Those debts are paid in a specific order, which you can read about here. If there is not enough in what remains in the estate, you may have to apply for a judgment of insolvency in the Superior Court.
What Happens If You Find More Money?
If your deceased spouse later receives money or other income, you find missing bank accounts or uncover new property, that pushes the estate value over the $50,000 limit, you will have to reapply for Letters of Administration and open a Probate Case and follow the general estate administration procedures.
3B:10-3. When spouse, partner in a civil union, or domestic partner entitled to assets without administration.
Where the total value of the real and personal assets of the estate of an intestate 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 of the intestate. 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 the value of the intestate's real and personal assets will not exceed $50,000, and shall set forth the residence of the intestate at his death, and specifically the nature, location and value of the intestate's 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.
amended 1983, c.246, s.1; 2004, c.132, s.77; 2005, c.331, s.24; 2015, c.232, s.1. NJSA 3B:10-3 When spouse, partner in a civil union, or domestic partner entitled to assets without administration. (New Jersey Statutes (2018 Edition))