Closing the Estate

Pursuant to N.J.S.A. 3B:10-23, the Executor under a Will or the Administrator of an intestate estate is obligated to settle and distribute a decedent’s estate “as expeditiously and efficiently as is consistent with the best interest of the estate”. After marshaling the estate assets, paying the decedent’s debts and paying an unnecessary death taxes, the Executor or Administrator should take prompt action to close the estate. In order to do so, the Executor or Administrator typically accounts to the estate beneficiaries.

An estate can be closed in one of four fashions: (1) the mere release of funds by the Executor or Administrator to estate beneficiaries; (2) the release of estate distributions to estate beneficiaries after the execution of a Release and Refunding Bond upon which there is a waiver of any form of accounting; (3) distribution to estate beneficiaries after said estate beneficiaries execute a Refunding Bond and Release upon submission of an informal accounting; and (4) an Order obtained by a Court of competent jurisdiction after a Verified Complaint and Order to Show Cause are filed for approval of an Executor’s or Administrator’s account.

Theoretically, it is possible for an Executor or Administrator merely to make distributions to estate beneficiaries with no paperwork whatsoever. However, an Administrator would typically not be discharged by the Surrogate’s Court unless Refunding Bonds and Releases are signed and filed. (A copy of this form is attached in the Appendix). The requirement of bond may continue to be imposed and costs of discharging the bond would be borne by the Executor who would subsequently have to obtain Refunding Bonds and Releases or a Court Order discharging the requirement of bond at his/her own expense. Although an Executor typically doesn’t not usually have to concern himself/herself regarding the requirement of bond, an Executor constructively waives the protection of a Refunding Bond and Release by not having such bond(s) executed prior to distribution. No competent professional would ever allow a client to close an estate in this manner.

It is theoretically possible for beneficiaries of an estate to execute Refunding Bonds and Releases without requesting any accounting or information from the Executor or Administrator. In doing so, the beneficiaries of an estate are exhibiting, to a degree, blind faith. However, the execution and filing of said bonds effectively closes out the estate and discharges the Executor or Administrator from his/her position without further liability.

Although it is possible to resolve the closing of an estate without an accounting, the case law of the state clearly details its right to an accounting and the expectations of estate beneficiaries regarding the handling of an estate. (A copy of an accounting is attached in the Appendix). Specifically, the courts of this state have described the duty of an Executor or Administrator as follows:

“It is elementary that the Executor is under a peremptory duty to account for the assets of the estate coming to his possession or knowledge; and if, through failure of the fiduciary duty, he is unable to do so, he is chargeable with their full value. It is a primary duty of one exercising such trust functions to gather in the assets of the estate; and while it is incumbent upon him, in the discharge of this duty, to use only such care, skill, diligence, and caution as a man of ordinary prudence would practice in like matters of his own, it is also held to the upmost good faith.” In re Brueck’s Estate, 124 N.J. Eq. 62, 63 (E&A 1938).

In fulfilling a fiduciary relationship, the fiduciary, at all times, should be governed by a “prudent person” standard.Id.@63; In re Accounting of Koretzky, 8 N.J. 506, 524 (1951). Where the fiduciary fails to fulfill his/her obligation, “the parties of interest, may, by an exception, challenge the account in respect of the sufficiency of the charges made, and the Executor may be surcharged with the reasonable consequences of his failure of duty.” Brueck, supra at 63.

An accounting may be filed in an “informal” or “formal” manner. An informal accounting is a general summary of the assets obtained by the Executor/Administrator, as well as income received and spent by the estate, disbursements made by the estate, distributions made by the estate, and proposed final distributions. In many instances, an informal accounting will summarize classes of expenditures rather than make line-by-line itemizations.

A formal accounting is typically generated in one of three circumstances: (1) a complex estate in which the beneficiaries as well as the Executor or Administrator agree upon the production of same; (2) where required by the Charitable Trust Section of the Attorney General’s Office; and (3) when agreement cannot be reached upon an informal account by estate beneficiaries and the Executor or Administrator thereby can only be discharged by an Order by a court of competent jurisdiction.

In complicated estates, it is frequently necessary to generate a formal accounting to ensure that all parties feel that there has been proper disclosure regarding the handling of an estate. Theoretically, a formal accounting can be generated for even the smallest estate. However, may estates resolve without a formal accounting for the cost of the preparation of same. If all parties agree, the formal accounting can be used to close out an estate. In this instance, a Court Order is not necessary. Refunding Bonds and Releases will suffice.

In many instances, the Charitable Trust Section of the Attorney General’s Office may require a formal accounting in order to conclude an estate. By statute, Notice of Probate must be sent to the Charitable Trust Section whenever a charity is a beneficiary under aWill. If there is a specific bequest, the Charitable Trust Section does not require an accounting, however, when a charity or charities are remainder beneficiaries under an estate, the State can require a formal accounting. When the State requests a formal accounting, the State also requests that the attorney, representing the estate, submit an Affidavit of Services for fees and costs incurred.

Most frequently, a formal accounting is filed when the Executor or Administrator is unable to obtain Refunding Bonds and Releases from all beneficiaries notwithstanding good faith attempts to obtain same through the use of an informal accounting. In this event, the only way in which an Executor or Administrator can be discharged from his/her duty is to obtain a Court Order. In order to do so, the Executor or Administrator must file an Order to Show Cause along with a Verified Complaint for approval of accounting. At the very least, the Verified Complaint will seek an Order from the Superior Court (Chancery Division/Probate Part) (a) approving the Executor’s or Administrator’s account, (b) approving the legal fees and costs incurred; (c) approving the Executor’s or Administrator’s commissions; and (d) discharging the Executor or Administrator from any further liability from the estate or its beneficiaries. In the case of intestate administration, the Complaint should also see that any surety bond be discharged upon distribution to the estate beneficiaries.

Upon approval of a final account, the surety bond can be discharged in one of two fashions. First, the beneficiaries will be given one final opportunity to execute a Refunding Bond and Release. If any Refunding Bonds and Releases remain unexecuted, an application can be made to the court to have said beneficiary’s share paid into the court and acquire an Order discharging the bond upon doing so.

An Order to Show Cause and formal accounting may be filed by an Executor or Administrator at any time once the estate is ready to be distributed. However, a beneficiary of an estate may not compel an Executor or Administrator to account until after the expiration of one year after the appointment of the Executor or Administrator unless special cause is shown before the Superior Court.

A formal accounting generally includes information in the following areas: (1) a general statement made as to corpus, income, and balance on hand; (2) receipts of principal or corpus by the beneficiary; (3) gains and losses on sales or other dispositions of capital assets; (4) disbursements of principal or corpus; (5) distributions of principal or corpus to estate beneficiaries; (6) principal balance on hand; (7) receipts of income; (8) disbursements of income; (9) distribution of income to estate beneficiaries; and (10) reserves held and proposed schedule of distribution.

When an account is filed in court, a representative from the Surrogate’s Office will review the account in detail. The Surrogate’s Office will assess a fee for the audit of the account. After this audit is made, a memorandum is written to the probate judge as well as, in many instances, to the attorney who prepared the account as to any questions or concerns the Surrogate has regarding the account itself. In some jurisdictions, if the account has considerable questions or does not comply with the before stated format, the Complaint and Order to Show Cause may be returned for correction. Nevertheless, after the correction Order, at times even without, an Order to Show Cause will be executed whereafter notice must be given to all interested parties regarding the hearing date. The Order to Show Cause will contain language which sets forth the date by which exceptions to the account and answers to the Complaint must be filed by any protesting party.

On the return date of the Order to Show Cause , the Court theoretically can hear arguments regarding the accounting and exceptions and take testimony. At the Court’s discretion, a discovery schedule can be set regarding interrogatories and depositions by the fiduciary and/or contesting estate beneficiaries. After the plenary hearing, the probate judge can either accept the account in its entirety or agree to alter the account as to certain exceptions.

In making a final determining regarding the account, the probate judge will make a determination as to the appropriateness of the fiduciary commissions as well as legal fees and costs incurred on behalf of the fiduciary. Although such fees are typically paid by the estate, the Court does have some discretion. First, a Court can modify the Executor’s fees. Second, the Court can take two sets of action as to legal fees. First, the Court can adjudicate the appropriateness of legal fees and costs requested.

Additionally, the Court can determine which party should be responsible for the payment of such fees and costs. Although such fees and costs would typically be paid by an estate, the Court can surcharge the Executor or Administrator if there exists evidence of gross negligence or fraud. On the other hand, the Court can surcharge the accepting party for the fees and costs incurred in filing an accounting if the Court finds that requirement of an accounting and cost of the proceeding were generated in bad faith.

Distribution of an estate typically takes four forms: (1) distribution of non-probate assets, (2) distribution of specific pecuniary bequests, (3) distribution of specific (but illiquid) bequests, and (4) residuary distributions.

In general, non-probate assets are not even handled by the Executor or Administrator of the estate. Such assets cannot be counted in the Executor’s or Administrator’s commission structure. However, if an Executor or Administrator has knowledge of the existence of non-probate assets, information regarding said assets should be distributed to the beneficiaries of same.
Non-probate assets typically take three forms. First, non-probate assets could be contract assets such as life insurance, annuities, individual retirement accounts, and other forms of retirement plans. Such assets are paid to the named beneficiaries of said accounts or policies. Said accounts or policies are only paid to the estate if there is no named beneficiary. Assuming that there is a named beneficiary, the Executor or Administrator should supply a certified copy of a death certificate to the beneficiary so that he/she may claim the proceeds from said accounts or policies. If no beneficiary is named, the Executor or Administrator shall provide not only a certified copy of the death certificate but a short certificate of the Letters Testamentary to the financial institution holding said asset and will refer that asset to be retitled or paid over to the estate.

Second, an individual may own transfer-on-death (TOD) or paid-on-death (POD) accounts. These are accounts historically held with banks. However, they have also been utilized on government savings bonds as well. Over the past decade, many brokerage house offices have employedTODdesignations. In order to claim such assets, theTODor POD beneficiary needs to supply a certified copy of the death certificate. An Executor or Administrator should provide a copy to said beneficiary, although they have no legal obligation to do so. Such beneficiary can certainly obtain a copy of the death certificate at the municipality where the decedent resided at the time of his/her death.

Third, assets can pass by right of survivorship. In financial accounts, there is a designation of joint tenants with right of survivorship. With such accounts, death certificates are produced by a surviving account holder and, thereby, assets are passed from one party to another.

In the case of real property, it is not necessary to transfer the ownership of property by deed from the estate of the deceased owner to the surviving owner. When the property is later sold or otherwise conveyed, the incident of the deceased party’s death merely needs to be noted in the deed recital.

Notwithstanding the foregoing, many financial institutions will only release one-half of the aforementioned assets until a waiver is obtained by the State ofNew Jersey. If the beneficiaries are Class A beneficiaries (i.e., spouse, parent, children, or other lineal descendants), the assets are typically released immediately if a Form L-8 is executed at the financial institution which, in turn, will request the waiver from the State. If more remote relatives, friends, other individuals or entities are named as beneficiaries, the entirety of the asset will not be released to the beneficiary or surviving account holder until a waiver is received by the State ofNew Jerseysubsequent to the filing of a New Jersey Transfer Inheritance Tax Return.

For distribution purposes, two forms of bequests are handled by the Executor or Administrator. Specific pecuniary bequests are precise distributions of cash. Those bequests should be paid as soon as is feasible after death. Typically, such bequests should be paid once the Executor has sufficient cash to handle such bequests along with any typical liabilities of the estate, including funeral expenses, administration expenses, debts and taxes. Pursuant to N.J.3B 23-11, “General pecuniary devises shall bear interest beginning one year after the first appointment of a personal representative until payment, unless a contrary intent is indicated by theWill, or unless the Court, for good cause, raises the imposition of interest. The annual rate of interest on general pecuniary devises shall equal the average rate of return, to the nearest whole or one-half percent, for the corresponding proceeding fiscal year terminating on June 30th, of the State of New Jersey Cash Management Fund (State accounts).” Notwithstanding the foregoing, an Executor or Administrator should forego payment of such a devise if it appears that there are significant liabilities pending against the estate especially if such claims are subject to litigation.

All other bequests, including residuary bequests, should be made as promptly as possible. However, neither an Executor nor an Administrator need to distribute any such bequest until he/she receives a closing letter from the Internal Revenue Service and the New Jersey Transfer Inheritance Tax division releases its closing letter and waivers. In general, complete distributions are not made until such closing letters and waivers are received. On the other hand, an Executor or Administrator may make partial distributions before he/she receives the closing letter and waiver if he/she determines that sufficient funds exist to pay any contingent liabilities.

One of the benefits of making partial distributions is the shift of income from the estate to the beneficiaries. In making a partial distribution, the Executor or Administrator of the Estate can send a Form K-1 to the beneficiaries who, in turn, can claim estate income on their own individual Form 1040. This option is almost always preferable to having the estate income taxed by the estate at significantly higher estate tax rates. In determining whether or not such partial distribution should be made, the Executor or Administrator should weigh the following factors: (a) the needs of the beneficiaries, (b) potential deterioration or loss of value of estate property, and (c) income tax ramifications from shifting estate income. If the Executor or Administrator decides to make a partial distribution, he/she should treat all beneficiaries impartially by making pro-rata distribution of their shares under the intestacy statute.

In general, there is no set time by which an Executor or Administrator must close an estate and distribute the estate assets. It must be done pursuant to the reasonable person standard. If an estate is taxable, the Executor or Administrator should wait until the federal closing letter and/or state closing letter are received. In the event an estate is subject to both federal and state tax, the Transfer Inheritance Tax Branch will not release a state closing letter until the federal closing letter is received by its office.

After the aforementioned steps are taken, the Executor or Administrator shall ensure that all final estate expenses are paid including Executor’s commissions and professional fees.

Occasionally, an aggregate estate is not expected to cover the decedent’s debts, administration expenses, taxes and bequests. In that situation, the shares of estate beneficiaries must be abated. Pursuant to N.J.3B:23-12, shares should abate in the following order: (1) property passing by intestacy, (2) residuary devises, (3) general devises and (4) specific devises. N.J.3B:23-12 further states that abatement within each classification is in proportion to the amount of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of theWill.

An Executor or Administrator can be discharged in one of two fashions. First, Refunding Bonds and Releases, as discussed heretofore, are executed by all estate beneficiaries and filed with the Surrogate. By doing so, the fiduciary ensures that he/she has been released by any further liability by the estate beneficiaries and exacts the recognition of pro-rata distribution to any liabilities that may be discovered or presented to the estate at a later date. If such Refunding Bonds and Releases cannot be obtained, a Court Order will suffice. If a surety bond has been required, it can be discharged by the Order, Judgment, or evidence of filed Refunding Bonds and Releases.


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  1. Barbara N. says:

    How long does it currently take for the NJ Attorney General to approve an estate that has a charity as a beneficiary.

  2. Andrew says:

    Hello, Thank you very much for the blog, it was very helpful. I couldn’t find the sample accounting form in the “Appendix” Is there any chance you could post a link or share it directly if I provide an email address? Thanks


  3. Mal says:

    when is the earliest an estates assets can be distributed and the estate closed out when there is only one beneficiary?

    • Mal, your question is difficult to answer accurately without knowing anything about the background of the estate. For example, obligations to death taxes and the claims of potential creditors are issues which may need to be addressed. However, if the executor and the beneficiary are one and the same, it is possible for the executor to transfer the assets to himself or herself so long as they understand that they have to meet these potential obligations. If they are different people, the executor should typically wait for the 9 month statute of limitations for claims of creditors to be filed and, if there are any death tax obligations, until the State releases a letter of no further assessment. Hope this helps. Tom

      • Brenda A Cole says:

        Thomas, I am the executrix of the estate and the beneficiary of the home. I i distributed the home furnishings, artwork and to her items to three relatives as stated in the will and gave them each a certificate of distributions according to the will. I was able to sell the home recently and I paid off the mortgage balance and paid all outstanding depts. I just closed out he estate account. Becasue I was will the home, do the balance of the sale of the home below to me after my realtors and closing cost have been paid? I spoke witht he probate court and they said once that was done they did not need to do anything else

  4. The court ordered Conservator (who filed to be the Administrator in May 2016 ) went to court on 12/20/16 to close out my husbands moms estate which entails distributing the money to 3 siblings (everything was liquidated in Sept 2016) & for him to receive his final fees & then be released from his duties.

    Now what happens?
    What is a Refunding Bond & Release?
    How long until the estate is distributed to the siblings?

    Thank you in advance for your response, Sherri

    • Sherri, as to the issue of timing and what happens, that in part is a reflection of the court order. However, a refunding bond and release is a document executed by each beneficiary which, in part, discharges the administrator of the estate from any further liability upon making the distribution noted therein. Good luck. Tom

  5. Rick says:

    I am dealing with an insolvent estate. The only beneficiary is one (living) person, call her “Jane Doe”. However, a charity was named as a third alternate beneficiary, if “Jane Doe” and her issue not have survived the decedent.

    Does this mean I have to serve the NJ Attorney General and the charity w/ notice of the probate? Even though the charity is only a back-up/contingent beneficiary, where the contingency never came to pass… ?

  6. Noel Rivers says:

    Thank you for posting this informative article. I have a question regarding an estate that has a clause stating that all just debts and costs of administration shall be paid by the residuary estate, but the residuary estate isn’t large enough to pay off those expenses, which include a hefty reverse mortgage. The decedent’s 3 living children who take the residuary would be left with significantly less, should I deplete it to pay the just debts, and the 3 grandchildren who share a 1/3 interest in the real property would receive much more than decedent intended.

    If you can point me in the right direction on this estate I would greatly appreciate it!

    • Because there is a reverse mortgage, the home needs to be sold. To be safe, I would file an action in the county probate court seeking what is known as advice and direction. In doing so, you are asking the judge to make the call.

  7. Noel says:

    You state in this article that a copy of samples of certain forms are attached in the appendix. I can’t find the appendix where the forms are attached. Can you point me in the right direction?


  8. Kayla says:

    In NJ, when there is a partial disbursement does the Executor get to draw their Executor fee at the same time the partial disbursement is paid out? Also, what happens if the beneficiaries decide not to sign the Final Release/Refund bond?

    • The Executor can take her fee any time. However, until the estate is closed, part or all of the fee could be challenged. If the beneficiaries do not sign the final refunding bond and release, the only way to be properly discharged is to have a formal account approved by the Court. The Executor needs to do this for her protection.

      • Andrea says:

        If my father stated ( verbally for several years) that my sister wasn’t entitled to an executive fee but never stated it in his Will can I challenge her not to receive such fee? If so, what’s the results of me challenging this fee in the state of PA?

  9. Glen says:

    I am a co-executor of an estate with my brother. His attorney fees are 10x that of mine. He doesn’t seem to understand what is going on nor do I think he reads what he signs and continues to spend thousands of dollars on small issue. Is there anyway to stop this or do I just need to wait for an accounting at the end for a judge to review the billing. Would a judge really allocate fees to a co-executor if they are excessive?

    • I would put your brother on notice that you believe the fees to be excessive and will challenge them. If he wants to continue to use the attorney in question, you can tell him to take the fees out of his commission and/or share of the estate. Assuming he will not, you can either bring an action to remove him now or to file an account with the court seeking that the fees be disallowed or reduced.


    I am the executrix of a friend’s estate. I have already made partial distributions to all 10 beneficiaries. I am now left with $11,000 to distribute in order to close out the estate. I realize I will have to prepare final release and refunding bonds. My question is – how do I know what amount to put in the bonds. I will not know how much filing fees and mailing fees will be. Does the law allow for me to leave a minimal amount (ie: $100) in the estate account?

    • Bernadette, it is customary to hold back funds to pay for the preparation of any estate income tax returns and administrative costs. Our practice is to prepare refunding bonds and releases that net out these costs. Once these costs have been paid, you can distribute the balance without any further refunding bond. It is hard to imagine someone getting upset by receiving an unexpected check. Tom

  11. Ruth Jensen says:

    My Mom just died two weeks ago. My parents WILL entails distributing the estate to 3 siblings equally. Nothing has been liquidated as of this date (two homes + stocks and bonds).
    The executor of the WILL is requiring, at this date, that all siblings complete a Refunding Bond and Release legal form before any monies can be distributed.
    To start the process, several stocks will be cashed in for distribution. Is it necessary to complete at this time, the Refunding Bond and Release form in order to receive partial payments of stocks etc?

    • Ruth, it is customary for an executor to have a refunding bond and release executed by estate beneficiaries prior to any distribution. However, the refunding bond and release should state in the caption that it is a “partial” refunding bond and release. It should also note that any release of the executor for the distribution is solely up to the extent of the partial distribution. You should not execute a standard refunding bond and release as it typically says you have received the entirety of your inheritance. Good luck.

  12. James Dean says:

    Can you tell me what the worst can happen if the final accounting is incorrect? I have submitted the first and final, but they sent it back. I made corrections the best I could, but still am $49 off somehow. Everything else is perfect. All other paperwork is good. Just can’t figure the 49, so I put it as depreciation of one asset. I am just done with the probate stuff and really can’t handle the stress of it any longer, and want it to stop. So, what is the very worst case if my final accounting is wrong (to the courts), and I can’t find the $49. Can I just go to jail for a few days and be done with it. All beneficiaries have signed off on everything and notarized copies of distributions and granting approval of estate closure. I just want it over now. I can’t handle any more money or stress. How can I make this stop? Thank you.

    • I can’t speak for your State, but in New Jersey, if all of the beneficiaries sign a refunding bond and release, there is no need for court approval. You file those executed forms and that’s it. If you nevertheless need to file, the worst should be that they reduce your executor’s commission by $49. Good luck.

      • James Dean says:

        Thank you. I don’t believe VA has a need for that. What I can say is living trust, don’t die in Fairfax, and as much honor as it seems, try to steer clear of being the executor. It will literally stress you and your wallet to death.

  13. Kurt says:

    My life-long bachelor brother-in-law passed away intestate. Having no wife or children as heirs, his next of kin per New Jersey guideline is his 88 year old mother. She asked me if I would handle his final financial affairs for her. So in the Middlesex county Surrogates office we filed and she signed the renunciation form and I was named administrator. Turns out his estate is insolvent, with insufficient funds to pay for the funeral. There is no funding left to pay other creditors and federal and state income taxes. Refusal letters were sent to all known creditors. in order to close the estate, do I need to have my mother-in-law file a Refunding Bond and Release form stating zero dollars will be distributed? Do I need to file an informal accounting with the state as well. If so Is there a form for this? His father is deceased so I believe his mom is the only legal heir from a legal point of view, correct? His three sister do not need to served and file Refunding Bond and Release forms. Thanks iin advance for your help.

    • Kurt, the refunding bond and release concludes any legal obligation you may have with beneficiary. However, it does not discharge any liability with the taxing authorities or other creditors. Technically, what you should do is file an application to have the estate declared insolvent. It is akin to a bankruptcy proceeding for an estate. It is done by filing a Verified Complaint and Order to Show Cause with the Surrogate. In it you list the assets, expenses and debts. Based on what you are telling me, the court should enter an Order stating that the estate is not bound to pay the debts. The Order to Show Cause and final Order get served on the creditors. The upshot is that it eliminates the creditors from filing any action against the estate later. It is an expense (a few thousand dollars) but it allows to shut down the creditors especially the IRS and NJ Division of Taxation who may inquire a few times before closing out the estate. Good luck.

  14. Beverly Albright says:

    I am the executor of my father’s will. My brother and I are the only beneficiaries and have pretty much split everything already. The only thing left is the home. My brother doesn’t want any parts of it and has agreed to sign a document allowing me to put the deed in my name solely. Is there a specific form that I can find online to do this? I need to get the deed in my name so that I can refinance the mortgage.

  15. J. Smith says:

    I am one of three beneficiaries in my aunts will. I have received an informal accounting of the estate but there are items that do not add up. I have requested both to the executor and the attorney he has given power of attorney to for a formal accounting of the estate before my self and brother sign the release bond. I have yet to receive the formal accounting at what point do I submit an application to the court to have the estate audited.
    Also if the executor gives his duties to another does he still receive his fee?

    • You can apply to the local probate court to compel an accounting. In addition, you can contest the executor taking the full fee. Although most states have statutes or case law that sets commissions, there is law that supports the reduction of commissions if the executor did not expend much effort or virtually delegated all of his or her responsibilities to a third party such as the estate attorney.

  16. Andrew Gattuso says:

    My sister passed away May 12, 2017. Her will left PNC bank the executor. Her estate is about $1,000,000. In New Jersey, can half distribution be paid out now. The bank is saying one year for half distribution

    • Andy,I am sorry for your loss. Having said that, partial distributions are not made immediately after death. Based on the content of your message, it appears that her estate is subject to inheritance tax. That tax is due and payable eight months after a decedent’s date of death whereafter the executor has to wait about 6 months for the State to provide a letter indicating there is no further tax obligation. In addition, there is a 9 month statute of limitations for creditors to file claims after an individual dies. Although she may very well not have any debts to your knowledge, there are occasionally surprises in estate administration. One year may be a bit cautious but it’s not out of line. In this sort of circumstance, the earliest I would have a distribution made is after the nine month period. This may not be the answer you were seeking but I hope it helps.

  17. Andy G says:

    My sister died on May 12, 2017. She lived in New Jersey by herself. PNC bank is executor of her will.
    Her estate is around $1,000,000. Me and my 3 siblings are equal beneficiaries. Can one distribution be now? The bank is say one year. She has no debts.

  18. Denise says:

    I am the Executrix of my father’s small estate. My brother who was also a beneficiary passed away six months after my father, during probate. My brother died intestate. His assets passed to his wife without going through probate. I am now ready to distribute my father’s assets, can I distribute directly to my sister in-law or does she have to create an estate?

  19. Kathryn Hoffman says:

    My mom died just over two years ago. Two of four siblings are unhappy and spiteful, as there was a no contest clause they waited until the time period was over to complain. The executrix has tried to answer every question raised but the spiteful ones are still not satisfied. They now want to contest the will, our mothers mental capacity, the executrix, our mothers expenses for the last five years of her life and anything else they can think of. According to our attorney they have told their attorney that their whole plan is to spend all the estate money on attorney fees. They received their cash distribution, we received the real estate. The remainder of the estate money is to be distributed by percentages. How can we end this travesty?

    • Kathryn, they can’t contest the Will as the statute of limitations to do so has expired. As to the administration of the estate, you will likely need to file a formal accounting with the court. When you do, request that the unhappy siblings be assessed the fees and costs of bringing the complaint and the associated court costs. I cannot guarantee that a judge will invoke this penalty but the estate will be properly concluded assuming the executrix’ records substantiate that she has done her job properly. I will note that I dealt with a similar family over the past year. However, two weeks before Court, they folded. Although we didn’t impose the costs on them, they signed the refunding bonds and releases, and the estate concluded. Good luck.

  20. Gayle Lundquist says:

    I am the executrix of my mother’s will. Probate in NJ. All financials have been equally distributed to my 2 siblings and me. My mother’s jewelry (gold & silver pieces) was last to be divided. I hired a certified estate appraisal service who valued each piece as they would for the purpose of an estate sale. I used this valuation as a means to divide the jewelry lot in thirds. However, I sold all the gold pieces to this service for the purpose of melting. I received a check for $1225.00 and deposited in the estate checking account. The will gives me the right to decide how to divide & distribute the personal property. I knew the gold jewelry was going to be a battleground and chose to melt in order for everyone to get equal share. The remaining silver jewelry can be sold at one’s discretion. My sister is livid, accusing me of not fulfilling my fiduciary duty to her because she “wanted” specific pieces. The will does not name any specific personal property to go to any sibling. Once she received her share of the financials, she has been spiteful and nothing but trouble. Everything is done and accounted for. Can she challenge this in court? Can she prevent me of collecting my commission? She threatens to not sign the Release Bond. I just want to close this probate and be on with my life. Thank you for your time and advice.

    • Gayle, you may have a problem. Typically, beneficiaries are entitled to what is known as an “in kind” distribution. That means they can take an asset as part of their share of the estate.
      As such, your sister is likely correct. You could have offset the value of the pieces she wanted from the share she was to receive from the liquid assets. I would consult with counsel to see what you can do to mitigate this issue. Good luck.

  21. Flossie says:

    My husband passed away intestate two months ago. At the surrogate’s they said, as his wife everything is mine since the only children involved are both of ours. As the administrator of his relatively small estate, It’s been crazy. My questions are, am I supposed to pay the creditors for cars and credit cards out of the estate right away or am I suppose to wait 9 months for them to file a claim? I want to make sure the taxes are filed and paid before paying creditors but this is taking time to gather all the information. I have to go to the IRS to see what they have also.
    Should I pay off the leaves to his two cars from the estate( not in my name). The creditors took one car without my knowledge and said the lease was up in September and only a couple of payments need to be made. The car lease expires in Nov 2017.
    Also, my daughter started college in September. My husband has always paid for our children’s college education. He passed away right before the first payment was due. I had to pay it out of the estate, is this okay? I hope it is. Also, can I pay my living expenses out of the estate like…, mortgage, taxes, and the heating system stopped working in July. It needs to be replaced estimated at $17000 for 2. I can’t afford all this from my own accounts. How do I close the estate once it’s done or do I need to do this.Will appreciate any advice you can give me.

    • Flossie, I am sorry for your loss. There are ways to minimize exposure to certain creditors. However, it is impossible to do that via an on-line forum like this. There are variables in including the amount of assets, what type of assets, in whose name, the amount owed to the creditors. Although the estate is modest, you should consult with an attorney. Although there is a cost to get good advice, it’s much cheaper than trying to handle these issues on your own. Good luck.

  22. Gretchen says:

    My mother in law died last December and my husband is the executor of her estate (so, I’m helping) with him and two siblings as 3 equal beneficiaries. We have passed a 6-month waiting period for creditors to come after the estate. Are we able to partially disburse the funds to the beneficiaries? I have asked this of our attorney and can’t seem to get any answer… One sibling would like the funds but we don’t want to write checks if we aren’t supposed to. We would like to pay out the majority (it’s a relatively small estate with about $150,000 cash) and leave a budget for future expeneses like estate tax-prep and additional legal fees….

    • Gretchen, based on the information you have provided, I have several concerns. First,In New Jersey, the waiting period was expanded years ago to 9 months. Prior to 2005, there was a shorter period but the executor had to publish what is known as a notice to bar creditors. In 2005, the law changed so that the executor was relieved of the obligation to publish the notice, but creditors were given a few extra months to file their claims. Second, there’s no law that says you have to wait for any event to occur in order to distribute an estate. The “waiting period”, as you call it, is for the protection of the executor. If an executor distributes an estate prior to the end of the period, and a claim is filed before the deadline, the executor can be personally held liable for the claim. When an executor has a strong sense of any potential liabilities, partial distributions are often made earlier than that date. After the period has expired, final distributions should be made although a reserve should be held for payment of possible income tax preparation fees and legal fees. Third, the estate is not subject to estate taxes in NJ unless the estate exceeded $675,000 when she died last year. In all, your questions don’t appear difficult and a competent estate attorney should be able to answer them in the same conversation in which they are asked. Good luck.

  23. Yuko F says:

    According to the rule, ‘ All commission and legal fees are subject to the approval of the New York County Surrogate’s Court’. However, the Public Adminitrator has deducted for not only commissions , but also an attorney’s fee of 6% of charges out of the funds before the estate is closed even though he was revoked. What he had done was that he hired real estate counsel in DC to sell property. An Executor has taken over aa a fiduciary. I want to file Objections against his unreasonable and outrageous fees which he deducted. it is absolutely unacceptable. Please tell me how to file it ? Or should I file ‘ compelling accounting ‘ against him ?

  24. John says:

    I discovered as an heir on a NJ estate that the executor commissions were calculated on the entire estate value not the corpus total as seen on the informal accounting. There was approximately 370,000 of non corpus assets (annuity, named investment beneficiaries) which was not taken out when calculating the commission figures on the estate return. I pointed this out and the attorney’s reply is that the state approved it so it stands and the executors are not compelled to do anything especially since they will get less. I have refused to sign off on the informal accounting due to the inaccurate calculation on executor fees and is several thousand over what is should have been. I know hiring my own lawyer to convince this lawyer to correct the miscalculation would not be feasible. My question: if the lawyer files with the court to approve the accounting without my signature would I have a say myself to point out why and the court can decide if it truly needs to be changed without me having to hire a lawyer myself?

    • Commissions can only be taken on assets that pass through the estate. I would notify the attorney in writing that you are not signing off on the accounting unless it is rectified. By doing so, if he or she files an accounting with the court, I would seek to have the counsel fees and costs charged to the executor because the account was wrong and the attorney was provided with prior notice so that it could be corrected. Frankly, it may be worth consulting an attorney of your own as that attorney may be able to rectify the mistake with other attorney without a court proceeding erupting.

  25. June S. says:

    If one of the benefiaries can’t be located and can’t or won’t sign refunding form, are newspaper ads required and if so for how long? Are there other public notices required?

  26. John says:

    Tom You are a saint for answering these questions online… I am an administrator of my father’s estate with three other siblings at this point the estate is insolvant and I executed a deed in lieu with the bank on the house and am filing estate tax now. Two siblings signed releases but the third contended in probate. House is resolved and no other assists to allocate. My question is when can I close out my bond? Thanks!

    • John, if the third does not sign off, the only way you can close out the bond is by getting a court order. To do so, you will need to file an action with the court discharging you. It can take the form of approval of an accounting or to have the estate declared insolvent.

  27. Christopher Sukosky says:

    The estate has been in probate over 2 yrs. The Will creates a life estate inheritance for one intellectual disabled person. The life estate will not be in play until the estate is settled. Along with the disabled beneficiary 2 other beneficiaries have been living in the house. Executor informal accounting doesn’t mention any rents. Is this a breach of fiduciary duty not to collect rents for the estate?

    • Unless a will provides a life estate or similar arrangement for the other 2 beneficiaries, it is a breach of fiduciary duty to allow for rent free living unless the executor and all beneficiaries consent. There are two schools of thought as to how much should be collected. The first is fair market rent; the other is reimbursement for their portion of the carrying costs of the property. Aside from the disabled beneficiary, the estate and its other beneficiaries should not be underwriting the living expenses of the other two.

  28. Sarah says:

    Dear Mr. Begley,

    Thank you for your article and the informative responses.

    I am executor of my mother’s estate, she passed in 2013 with a very small value estate. I’ve not taken a fee, my brother and I were equally compensated and there are no disagreements. I’ve held back $1000 to cover an open concern with mom’s pension plan (though I do not expect to have to pay them).

    I think I’ve almost resolved the pension question, and I will split the final $$$ with my brother.

    Do I need to do anything “legal” to finally close this process?

    Thank you so very much, I appreciate your time and advice,


    • You and your brother, as well as any other beneficiary, should execute forms known as refunding bonds and releases which you can get off the county surrogate’s website. They essentially say that if there is any legitimate claim made against the estate in the future that all beneficiaries would be proportionately liable. More importantly, it discharges the executor so no one can come back in the future and claim that they should have received more money. They should be signed by all beneficiaries and recorded with the county.

  29. Tom McNulty says:

    My brother-in-law is executor of Estate with 3 siblings including him. Estate is approx $400k. It has been 1 1/2 years without distributions. We Estimate 5k in additional expenses and are waiting for Federal income tax refund of $10k. Can he disburse all but the $5k? Is it ok for him to make partial distributions at this time?

    • Tom, assuming that the information you provided to me is accurate and complete, partial distributions should be in order. A responsible reserve should be held to pay outstanding expenses which I typically pad a bit to be safe. However, if all taxes, if any have been paid as well as any debts, distributions should be made.

  30. Edward G says:

    Mr Begley – Can you explain the “required in certain cases” as it pertains to 3B 15-23 versus the 9 month statute of limitations as it exists in 3B 22-4. Under what circumstances would notice be typically required? Have you seen this in application. In addition, under what circumstances could a creditor motion a court to re-open an estate after the 9 month period? Do you know of any case law that outlines these issues?

    Please advise

    • Edward, please the nine month statute is set up to protect the executor or administrator of an estate from being held personally liable for claims of an estate. Creditors do have rights to file claims against an estate per the normal statute of limitations just as if the decedent hadn’t died. Yet the state recognizes that estates should not need to be held open for years. So, for example, if a creditor wished to claim that someone breached a contract one year before he died, and the statute of limitations was six years to file a suit, the suit could be filed after the nine months or, in this example, within five years after death. The nine month statute provides that an executor must address claims raised within that period of time after death. If the assets are distributed before then, the executor can be held personally liable for the claim. Afterwards, a creditor, would have to get a judgment and then try to collect from all the beneficiaries. I’ve never seen that happen though. Now, NJSA 3B:15-23 is set up if an executor or administrator either wants an order of discharge or if the court required it as part of its order of appointment. To get this order, a petition has to be filed with the court noting that the 9 months have elapsed and that all claims have been satisfied to the best of the executor’s or administrator’s knowledge.

  31. Pete T. says:

    Hello — The attorney that the Executor of my relative’s estate for which I am a beneficiary has sent me a Refunding Bond and Release to execute. In your (very good) article you make the point that beneficiaries can execute this document without requesting any accounting from the Executor. And you note that this exhibits blind faith to a degree.

    It was 5 months since the Executor’s last communication with before I received the Refunding Bond and Release form yesterday.

    I was surprised to receive the document, since this suggests to me that the Executor has taken action to closing out my relative’s estate, meaning beneficiaries may receive their share sooner than later. As an aside — I perceive that to date the Executor has acted in a “prudent person” standard.

    Can you estimate how much time to the settlement process would my request for an informal accounting add, rather than executing and returning the Refunding Bond and Release without any accounting?

    Many thanks for this informative article.


  32. Rachael says:

    My Mom died in May 2017, and my sister and I are the only 2 beneficiaries. Her house was worth $240K when she died in 2017, and my sister, the Executor, just sold it in March 2017 for $280 K. The proceeds were split between us two, with the exception of $50K. My sis wants to hold back that amount in a bank account for 6 years, just in case the Estate is audited, she says. She said she asked her accountant if that was a good idea, and he said it was. I was told that my Mom owed no taxes, and I know there were no liens…My sis said that that she doesn’t want to have to go “looking for money” if the Estate gets audited years down the road, if we owe money. While I understand this, the amt. she wants to hold back and the time limit seems unreasonable. Is there some form I that can be submitted now, that says my sis and I agree to split any money if owed in the future?
    Since my sister is the Executor, IF she remains firm about keeping that $50K in a bank account for the next 6 years, do I as the other single beneficiary, have any recourse? ( I want to use some of my portion for extensive dental work that I have been waiting years to have done.) I have done some research on this, and i have come up with two things… a refunding bond and release, and a form called an L-9. Would either of these forms be the answer to my sensitive situation with my sister? I am not trying to make waves with my sister over this, but her decision to hold back this much money just doesn’t seem to make sense to me.
    Thank you for your insight and your consideration in this matter~

  33. Norma says:

    My family had decided to disburse fund from my father estate annually for a period of 5 years to help soften the blow of the tax burden from the annuities which comprised a large portion of his estate. My sister is the executor of the estate and is suffering from some kind of mania. She keep threatening to do things such as not not give funds to a certain beneficiary etc. but has not lived up to any of her treats to this date. We are going into our third year of disbursements and the rest of the beneficiaries would like to close out the estate sooner than later instead of waiting for something to happen and have her removed as the executor. What is our next step? Requesting to have a final accounting and close the estate ?

  34. Michael says:

    I am the beneficiary in a will that has already gone through probate, been settled and we have been provided a final accounting. This all took over four years to complete. We were told by both the executor and their attorney that we would receive the inheritance shortly. Its been several weeks and neither will respond other than to say “maybe next week” without reason. How long can they do this for?

  35. Tony Starace says:

    If there are two certified wills, one in the US and one in France with neither will mentioning each country’s respective assets, is each will probated separately or will the US will trump the France will.

    Example: US will specifically states that a US house is sold and the proceeds added to the bank account and split equally amongst 3 beneficiaries (A, B, C) with a Virginia condo going to a specific beneficiary A.

    France will specifically states that the bank account gets split equally amongst 3 beneficiaries (A, B, C) and two France condos are left to the other two beneficiaries (B & C).

    The deceased were both US citizens.

    Thanks in advance.

  36. Bob says:

    A cousin died intestate in 2012. He received some large settlements after his death. The estate was contested and in various courts for 6 years. Finally all law suits are settled and the court appointed administrator can distribute funds to the many many beneficiaries. The substitute administrator has asked for a every beneficiary to sign the Release and Refunding Bond and has told us no one will get a distribution until everyone has signed.

    Question 1 – is this true – all 20 bonds must be signed and notarized and to the administrator before distribution?

    We asked for the tax returns to show the estate paid inheritance and estate taxes in NJ. That seems good. We asked for an informal accounting and the sub Administrator will not give us one. He said if we don’t sign the bond it will have to go back to court to order a formal accounting. Per your article to not have any accounting except for what is in the tax returns (some unsigned) from 4 years ago would be releasing him with blind faith.

    Question 2 – Any suggestions on how to get an informal accounting for, at the least, the time the substitute administrator handled the estate?

  37. Debbie Ramchandani says:

    As a beneficiary of my mother’s estate, I recently received an Informal Accounting along with the Refunding Bond and Release. The executor included non-probate estate assets in the accounting and improperly included those assets in the calculation of the executor’s commission. As beneficiary, I notified the executor of the error and requested an amended accounting. Notice was made by regular and certified mail. The executor replied she “faciliated” those disbursements and was, therefore, entitled to commission. I contacted the surrogate who confirmed commission cannot be taken on non-probate items. Period.

    Executor also called the surrogate and received the same information … you cannot take commission on non-probate assets even if “facilitated”. Executor amended her commissions in the Informal Accounting but purposely did not remove the words “facilitated by executor” on those POD line items.

    My question: May I add language in the Refunding Bond and Release that, although I do not dispute the (amended) final distribution figure, I disagree with the “facilitation” wording contained in the section regarding non-probate assets since that was not part of her fiduciary duty?

    I truly feel she purposely retained that wording even though she was advised to the contrary by the surrogate.

    Your professional advice is appreciated.

    Thank you.

  38. Kathryn Krautheim says:

    I’m a beneficiary of a NJ will. The administration involves severe issues and the theft of all the assets. I filed a VC and OSC. I refuse to sign anything to release anyone in the administration. I am requesting that my entire inheritance be directed by the court to a charity that is mentioned in the will. Does the Union County Attorney General get notified upon the court order? Does the Attorney General have the same rights to discovery so the charity receives all my inheritance?

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