Everything You Ever Wanted to Know About Ancillary Probate in NJ

Everything You Ever Wanted to Know About Ancillary Probate in NJ

If you have a loved one who died outside of New Jersey, but they owned real property in New Jersey, what do you do? The answer is an Ancillary Probate.

Generally, this means you will conduct a second probate action in New Jersey after you have done one in the state (or country) where the Decedent was domiciled.

For most, the Ancillary Probate process is as follows:

  1. If the Decedent had a Will, the named Executor probates the Will in the jurisdiction where the Decedent was domiciled. (If the Decedent did not have a Will, someone will likely have to file a complaint to declare an intestacy and request to become Administrator for the estate.)
  1. The Executor obtains an “Exemplified Copy” of the Will and Letters Testamentary (or Letters of Administration for an intestacy action) from the state where the Decedent died. Letters Testamentary and Letters of Administration are the documents that the Surrogate gives you to show that you have legal authority to act on behalf of the Estate.
  1. You take the Exemplified Copy of these documents to the NJ Surrogate of each county where the Decedent owned property. Advise them that you want to conduct an ancillary probate. (The fee is nominal, currently only about $5 per page plus $5 for the backing page.)
  1. The local NJ Surrogate then gives you Letters Testamentary for NJ, and you can transfer this property legally to the new owner according to the county.
  1. BUT WAIT, don’t transfer the property yet! You have to know who the property is going to. If all or a part the property (or money from the sale of the property) goes to someone other than a spouse, lineal descendant or lineal ascendant, it is subject to a NJ Inheritance tax! That’s right, there is a 11-16% tax on this property which must be paid within 8 months from the date of the Decedent’s passing. Failure to do so will result in very large interest and penalty charges. As the Executor, may be responsible for. (Note, even though NJ Estate Tax has been repealed there is still a NJ Inheritance Tax.)
  1. Once the Executor has determined what is owed to the State of New Jersey, he or she should pay the tax, if any. After the tax is paid, NJ will issue an inheritance tax waiver from the Estate and Inheritance Bureau. You can find additional instructions here: https://www.state.nj.us/treasury/taxation/pdf/other_forms/inheritance/itl9.pdf
  1. Now can the Executor can transfer the property? Probably. If the property was devised to a specific party, it should either be transferred to such party or sold with the explicit consent of that party. If the property was part of the residuary of the estate, then the Executor generally will have the power to transfer the property unless it is denied by the language in the Will. Make sure you check if the Will has any restrictions. Few Wills that I have run into ever limit an Executor’s ability to sell property. However, occasionally a Will contains a right of first refusal which must be honored.

What No Probate is Needed in the State Where the Decedent was Domiciled?

If there is no reason to conduct a probate proceeding in the state where the Decedent was domiciled, it is often possible to just do one probate in New Jersey. You can skip the first two steps above and file an original probate in New Jersey.

Ancillary Probate is usually be a quick procedure, unless an inheritance tax return is required. A knowledgeable probate attorney can help you through these steps.

11 thoughts on “Everything You Ever Wanted to Know About Ancillary Probate in NJ

  1. Kevin, my mother passed away in May 2010. She lived with my brother in PA and was a legal resident of the State of PA. She owned a 4 family dwelling in NJ and the will named my brother and two sisters as the beneficiaries. None of us want the home and told him we'd like it sold. Despite being the executor, he's done nothing and stopped speaking to all of us. I'm confused as that what court I need to go to to force the sale of the home being that mom lived in PA but the home is in NJ. Help!

  2. I'm sorry to hear about your loss. Unfortunately, I've seen situations like this all too often. When communication fails, you will need to find a good attorney to represent you. I'm not sure if there is enough there to have your brother removed, but you should keep an eye on the house to see what is going on until the matter is resolved. Please call our office if you wish for us to be of assistance – Forums like this really aren't the place.

  3. hi kevin, i have a situation where my uncle lived in new york and was a general partner in 2 shopping mall properties. one in NJ and the other in PA. do NJ & PA require ancillary probate or can this just be done form NY? thanks so much.

  4. If a vacation home in ancillary probate in NJ is trasferred to the deceased's son, how long does he have to hold it before he can sell it and not have to pay the 11-16% estate tax on the sale of the house?

  5. Dear Anonymous of 6/18/13,

    First, if a person dies as a resident of New Jersey, their assets are subject to a New Jersey estate tax. There is no holding period involved.

    Second, the 11-16% tax I think you are talking about is the NJ inheritance tax. That does not apply to lineal descendants.

    You probably do not have to worry about any NJ estate or inheritance taxes if the decedent was not a NJ domiciliary, but you will need to file a bunch of paperwork to get a tax clearance. Feel free to call me if you would like to confirm.

  6. Florida attorney here. Getting some conflicting information from NJ. If I do a summary administration for a domicillary estate here in FL, where no PR will be appointed, can a NJ attorney do an ancillary administration for shore property appointing a PR in the NJ probate? Thank you for the information in your blog. It was quite helpful.

  7. my mother lived in Israel for the last 13 years of her life and passed away here. myself and my sister both live in Israel as well and we are the only children. we have obtained an inheritance order from the Israeli court. Most financial institutions in the U.S. accepted these documents except one for a larger account in N.Y. . They want us to obtain Letters of Testamentary or letters of Administration from NYS surrogate court. Is there any way to get our israeli documents acknowledged by the embassy in order to give us a letter of administration or is there any other way to make this process smooth, quick and easy?

  8. Dear Anonymous of 4/6,

    I presume that when you say your mom passed away "here" you mean in Israel. You should contact the surrogate's court in the County where the bank account is to find out precisely what they need to do an ancillary probate. Most likely they will need a certified copy of all documents filed in the Israeli probate. However, I'll be honest, I have not had to deal with filing an ancillary probate in NY from a foreign country. New Jersey is much easier.

  9. I have seen in several places, including in this blog, that the probate process in Florida is complicated and a nightmare. Can you explain what makes it a nightmare? How long does it usually take to get letters of testamentary there, and what does it cost?

  10. Dear Anonymous of 9/21,

    Part of the issue is that except for very small estates, you almost always have to hire an attorney to get through process. Most attorneys will charge a flat 3% fee, potentially making it fairly expensive for some. Unless the executor is an immediate family member or lives in Florida, many people won't qualify as executor.

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