How to Finalize and Wind Up an Estate in Probate
Written by New Jersey Estate Administration and Probate Lawyer Fredrick P. Niemann, Esq.
By statute and case law, the Executor under a Last Will is required to settle a decedent’s estate expeditiously and efficiently and to distribute estate assets to designated beneficiaries. After collecting, itemizing estate assets and paying the decedent’s debts and taxes, the Executor/Administrator must do what is necessary to close out the estate. In order to accomplish this goal, the Estate representative must account to the beneficiaries when he or she proposes to be officially discharged from this position.
In general, there is no set time by which an Executor or Administrator must close an estate and distribute estate assets completion must be done pursuant to a “reasonable person” standard. If an estate is taxable, the Executor or Administrator should wait until the federal and/or state closing letter are received (tax waivers). In the event an estate is subject to both federal and state tax, the N.J. Transfer Inheritance Tax Branch will not release a state closing letter until the federal closing letter is received by its office.
An Executor or Administrator by law is able to make distributions of estate assets directly to the intended beneficiaries with little or no formality and little or no paperwork. However, this formality is not without risks. Typically, the estate representative (executor, administrator) will not be discharged by the Surrogate’s Court unless Refunding Bonds and Releases are signed and filed. If the Last Will or administrator’s appointment requires a bond to be posted, the bond will continue to be imposed and the costs of discharging the bond will be the Estate’s responsibility. Although an Executor most often doesn’t have to be bonded, an Executor waives the protection of a Refunding Bond and Release by not having such a document signed by each beneficiary prior to distribution to him or her. Few attorneys will allow a client to close an estate without a signed release and refunding bond from each beneficiary.
An estate can be closed in one of four fashions: (1) the funds can simply be distributed directly by the Executor or Administrator to estate beneficiaries; (2) the funds can be distributed to heir(s) after each signs a Release and Refunding Bond waiving his or her right to a formal accounting; (3) distribution can be made after the beneficiaries each execute a Refunding Bond and Release following receipt of an informal accounting; or (4) an Order has been signed and filed by a Court following the filing of a Verified Complaint and Order to Show Cause for approval of the Executor’s (or Administrator’s) formal or informal accounting to the heirs.
It is not unusual for families with little or no conflict with a straightforward probate proceeding to execute a Refunding Bond and Release without requesting any accounting or information from the Executor or Administrator. One of the benefits of making partial distributions to beneficiaries is the shift in income from the estate to the beneficiaries. In making a partial distribution, the Executor/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 statue.
By doing a partial release, however, the beneficiaries of an estate are placing themselves at some degree of risk, especially if the executor was in fact dishonest. This is because the signature and filing of such a bond(s) closes out the estate and discharges the Executor or Administrator from his/her position without further legal liability. I’ll discuss this subject further on this page.
I mentioned that you can legally close an estate without an accounting to beneficiaries but New Jersey probate laws clearly allow beneficiaries the right to an accounting regarding the affairs and transactions of the estate. This principle was affirmed in a NJ Superior Court decision which stated:
“New Jersey Case-hold has held that it is elementary that the Executor is under a duty to account for the assets of the estate coming to his or her possession or knowledge; and if, through failure of his or her fiduciary duty, he or she is unable to do so, the executor/rix is chargeable with their full value. It is a primary duty of an executor to gather in the assets of the estate; and in the discharge of this duty, to use only such care, skill, diligence, and caution as a person of ordinary prudence would undertake in matters of his own.”
In fulfilling his or her fiduciary obligation an estate representative is governed by the “prudent person” standard which in lay person’s terms means being “reasonably alert and responsible”. Where the fiduciary fails to fulfill his/her obligation, “the beneficiaries and others with an interest in the estate may file exception(s) with the probate court, challenge the account in respect of the sufficiency of the disbursements made, and the Executor may be personally surcharged with the economic consequences of his/her failure of duty.” The term “surcharged” means, simply “penalized dollar for dollar” for what they screwed up and cost the estate.
The type of accounting that can be filed is known as an “informal” or “formal” accounting. 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 and the Executor or Administrator agree upon the process; (2) where required by the Attorney General of New Jersey when a charity(ies) is involved; and (3) when agreement cannot be reached upon an informal account by estate beneficiaries and the Executor or Administrator whereby the executor can only be discharged by an order of the Superior Court.
When Can A Beneficiary Compel an Accounting From an Executor, Trustee or Administrator?
What Details Must the Final Accounting Contain?
A formal accounting generally includes information in the following areas: (1) a general disclosure of corpus, income, and available funds; (2) receipts of principal or corpus turned over by a beneficiary; (3) gains and losses on the sale(s) or other dispositions of capital assets; (4) disbursements of principal or corpus; (5) distributions of principal or corpus to estate beneficiaries; (6) statement of 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 to beneficiaries going forward.
When an accounting is filed in court, a representative from the Surrogate’s Office will review the account in detail. Their review is fairly rigorous depending on the county of venue. The Surrogate’s Office charges a fee for their audit of the estate. After the audit is completed, a report is written to the probate judge and the attorney who prepared the accounting addressing any questions or concerns the Surrogate has regarding the account itself. Once approved, notice must be given to all interested parties of the scheduled hearing date when the Court will decide to approve or not approve the accounting. The Order to Show Cause filed by the estate representative will contain language which will set forth the date when exceptions to the accounting and answers to the Complaint must be filed by any protesting party (“exceptions” means disagreements with the accounting).
In complicated estates, it may be necessary to generate a formal accounting to demonstrate that all beneficiaries have been given full disclosure, of estate assets and the handling of the estate by the executor. Wherever possible, avoiding a formal accounting is in everyone’s best interest because of its cost. But if agreement cannot be reached, all parties can agree that a formal accounting can be used to close out the estate. Of course this assumes the formal accounting does not create additional disagreements.
Often, the Charitable Trust Section of the Attorney General’s Office may require a formal accounting in order to finalize an estate when 501(c) charities are involved. By law, Notice of Probate must be sent to the Charity Trust Section of the Attorney General’s office whenever a charity is a beneficiary under a Will. If there is a specific bequest, the Charitable Trust Section does not require an accounting, however, when a charity or charities are remainder residuary beneficiaries, the State can require a formal accounting.
More Information About Formal Accounting(s) and the Courts
Most frequently, a formal accounting is filed when the Executor (Administrator) is unable to voluntarily secure signed Refunding Bonds and Releases from all beneficiaries after attempts to obtain same through the use of an informal accounting. To finalize the estate and to be discharged from his/her responsibilities, the Executor must obtain a Court Order of Discharge. To accomplish this, the Executor or Administrator must file an Order to Show Cause and Verified Complaint with an attached formal accounting. The Complaint will seek an Order from the Superior Court (Chancery Division/Probate Part) (a) approving the Executor’s or Administrator’s accounting, (b) approve the payment of all fees and costs incurred by the estate; (c) approve the Executor’s or Administrator’s commissions; and (d) discharge the Executor or Administrator from any further liability to the estate or its beneficiaries.
On the return date of the Order to Show Cause, the Court will listen to arguments by the parties regarding the accounting and any exceptions filed against the accounting. If necessary, the Court will take testimony. If the dispute is significant enough, the Court, as its discretion, will enter a discovery schedule involving interrogatories and depositions by the fiduciary and/or contesting beneficiaries. A date will be entered for a plenary hearing whereupon the probate judge will decide to accept or reject the accounting in its entirety or in part.
As part of the Court’s decision-making, the judge will decide the appropriateness of awarding fiduciary commissions, legal fees and costs incurred by the fiduciary. Although such fees are typically paid by the estate, the Court does have discretion to modify the Executor’s fees and can adjust the reasonableness of legal fees and costs.
Additionally, the Court can determine which party should be responsible for the payment of such fees and costs. Although fees and costs are typically paid by an estate, the Court can surcharge the Executor or Administrator if there exists evidence of gross negligence or fraud (“surcharge” means “punish”). Conversely, the Court can surcharge an opposing party for legal fees and costs incurred by requesting an accounting if the Court finds that the proceedings were generated in bad faith.
Once a Court gives approval of the final accounting, the executor’s surety bond can be discharged. This is done in one of two ways. First, the beneficiaries will be presented with a Refunding Bond and Release. If they fail to sign off Refunding Bonds and Releases, an application can be made to the court by the Executor to have the beneficiary’s share paid into the court of if forward thinking inset an Order discharging the bond in the application to approve the final accounting.
What about a beneficiary’s right to demand a final accounting? A beneficiary of an estate can compel an Executor or Administrator to account to him or her after one full year has gone by after the appointment of the Executor or Administrator unless special cause exists to compel an earlier accounting.
Introduction to Fiduciary Accountings
A formal Fiduciary accounting is time-consuming and costly. The required financial disclosures and document assembly is like an audit. Thus for most estates and trusts a formal accounting is to be avoided. There is another simpler and less costly option called an “informal accounting”.
With an informal accounting a fiduciary is not required to formally settle an estate or trust if the fiduciary obtains from each beneficiary a document called a release and refund bond (sometimes it’s referred to as a discharge). This document must be signed by the beneficiary or beneficiaries of the estate or trust. When all interested parties agree to an informal accounting and sign refunding bonds and releases, none of them can later compel the fiduciary to prepare a formal accounting. N.J.A. § 3B:17-13 reads:
Unless the governing instrument expressly provides otherwise, an instrument settling or waiving an account, executed by all persons whom it would be necessary to join as parties in a proceeding for the judicial settlement of the account, shall be binding and conclusive on all other persons who may have a future interest in the property to the same extent as that instrument binds the person who executed it.
However, there are exceptions to this rule. If it is later found out that the fiduciary engaged in fraud, misrepresentation, mismanagement, or undue influence, or there was a substantial misunderstanding on the part of a beneficiary which caused the beneficiary to forgo a formal accounting then, a formal accounting may be required by the surrogate of the probate court, or the probate judge.
In a difficult estate or trust where the fiduciary is fighting with or in conflict with beneficiaries it may be beneficial to the Fiduciary to prepare a formal accounting to protect himself/herself from later accusations or claims from a beneficiary. A fiduciary has the right to settle an account formally, or may be compelled to do so. N.J.S.A. § 3B:17-2. Moreover, a person with a financial interest in the Estate may file a complaint with the court to obtain an order to show cause compelling a formal accounting. Legal action to compel the settlement of an account must be instituted by a person having standing i.e. a person in interest. Examples of persons in interest include beneficiaries, creditors, heirs and next of kin.
Completion Deadlines and the Filing of an Accounting
An executor or administrator is not required to file his or her accounting in court unless a court compels him or her to do so. Even then a court cannot compel an executor or administrator to settle an account until the expiration of one year after their appointment, unless special reasons and/or allegations against the fiduciary are demonstrated to the satisfaction of the court prior to the first calendar year.
The same rules apply as a general matter to trusts and trustees. The first account of the trustee may be settled within one year after his or her appointment or as soon thereafter as is practicable. N.J.S.A. § 3B:17-3. This waiting period recognizes the unique circumstances that often times exist in the administration of a trust and affords the trustee the flexibility needed to maximize the interest of the beneficiaries. A trustee may be required to settle his or her accounting at such times as a court requires, but this occurs only when a beneficiary has brought legal action against the trustee.
What is an Inventory of Estate Assets?
An inventory is a written disclosure listing the assets of the decedent’s estate or trust. It is required as part of any estate or trust accounting. The purpose of an inventory is to give notice to all interested parties to the estate regarding the assets that comprise the estate/trust and to disclose the values of those assets.
An inventory is required to include all of the decedents or settlor’s real and personal property, of whatever kind and nature of which the personal representative has any knowledge of its existence. The property that should be included in the inventory include(s) promissory notes, debts, and claims that can result in money to the estate which is uncollected, as well as any debts owed by the estate. N.J.S.A. § 3B:17-4. An inventory should be specific and detailed in describing the assets of the estate together with valuations or it may be rejected by the staff accountant at the surrogate’s office.
An interested party may dispute an inventory on various grounds, including the personal representative’s failure to include particular assets owned by the decedent or a claim that there are more assets in the estate than claimed by the personal representative in the inventory. The interested party has the burden of proving “with reasonable certainty” the validity of the claim. An interested party means someone or entity with an economic interest in the estate either directly or indirectly on behalf of another (i.e. divorced spouse on behalf of a minor child, collection agency on behalf of a creditor). An interested party may also claim that the valuation of the property is too high or too low.
The Fiduciary’s Legal Obligation
Maintenance and Retention of Records to Support an Accounting
Executors, administrators, guardians, and trustees are under a duty to keep and preserve accurate accounts, to give the beneficiary, at reasonable times, accurate information regarding the property under his or her control and to allow a beneficiary to inspect the records and accounting. In addition, a testamentary trustee or the trustee of a living trust is under a duty to provide a beneficiary, at his or her request, with a copy of the trust agreement and relevant information about (1) the assets compromising the trust and (2) the particulars relating to its administration – essentially, a full disclosure of all information material to the beneficiary’s interest.
When a person serves as both a trustee and an executor, the accounts for the estate and trust should each be kept separately. The fiduciary should establish a record-keeping system to monitor the activity of the funds in his or her charge. This record-keeping system should be set up in such a way as to provide the fiduciary with the financial information needed to prepare an accounting. Just how formal the record-keeping system should be established depends on a variety of factors such as the size of the fund held, the type of assets, and the number of transactions anticipated to be made during the course of the administration. In simple cases, a checkbook ledger may be sufficient to track all of the deposits and expenditures made from the estate or trust. In more complex cases, a more involved system will need to be established. In any event, the records maintained by the fiduciary should enable him or her to prepare schedules that allow for a formal accounting if necessary at the end and would include in a probate estate assets inventoried at death or upon creation of the estate or trust; subsequent receipts, investments made, disbursements made, distributions to the beneficiaries, gains and losses on sales or other dispositions income generated, changes in investment holdings, and the current balance on hand.
At times a demand for the proof(s) of payment for alleged disbursements is made. While it goes without saying payment by check, certified funds and other methods of provable payment are generally accepted, sometimes beneficiaries want more assurance as to the bona-fide of the transaction. There is a court rule that provides that receipts supporting a payment in cash need only be presented at the request of a court or an interested person. If the surrogate is auditing the accounting and makes the request for production of receipts to particular changes, if the fiduciary is unable to produce a receipt in support of the payment, the fiduciary can testify under oath with respect to the payment, and the fiduciary’s testimony, in the absence of the contradiction, is admissible by the court. Whether the court believes the witness is another issue.
When a fiduciary is required to create an “accounting”, he or she will sometimes seek out the services of an accountant. Sometimes accountants are unaware that a fiduciary accounting is to be prepared according to the New Jersey Rules of Court, and is not the typical “double entry bookkeeping” system popular with accountants. Fiduciary accountings are format to themselves and many CPAs are unfamiliar with their implementation. Before hiring a CPA to assist with the preparation of a “fiduciary accounting”, you should ask the CPA about his/her familiarity with judicial accountings.
Exception to an Accounting; What Happens When There is Opposition to the Accounting?
NJ court rules address the procedure to settle an account; any interested party must file written exceptions to any item or omission from the accounting. An exception(s) is/are objections to the accounting or to the fiduciary’s conduct during his/her administration of the estate or trust. Our states court rule(s) also require that exceptions be stated with specially and by specific allegations. They must identify the item or omission being disputed, the relief being sought and the reason for the relief.
The purpose of filing an exception is to compel the fiduciary to verify and prove the validity and accounting of the funds eligible for distribution to eligible beneficiaries and every interested party to an estate or trust.
Examples of exceptions to an accounting include the following:
- Changes and allowances as to principal & income;
- Investments and assets composing of the balance of the estate;
- The value of all inventory;
- Statement of all changes made in the investments and assets from the beginning to date of filing;
- All estate and inheritance taxes;
- Payment of counsel and professional fees, commissions and other administrative expenses;
- Any claim paid by the fiduciary is unsupported;
- Any item or items in the statement of assets that is required to be attached to the account.
Executor/Trustee Liability in an Accounting
Exceptions Regarding Breach of Duty
If a fiduciary exceeds the powers and authority granted to him or her under the will or trust, a fiduciary is deemed to have committed a breach of duty, even if the fiduciary acted in good faith or at the advice of counsel. Case law has ruled that “due care and good faith cannot justify an executor, administrator, or a trustee who, under a mistake of law, intentionally does what is prohibited or is beyond his/her powers or who intentionally fails to do what is required by law”.
If however, fiduciary acts within the scope of his or her authority and in good faith makes a mistake of law or fact, the fiduciary is not legally chargeable if an ordinary prudent person would have or could have made the same mistake.
To recover for a breach of duty, an interested party must prove the loss being claimed resulted from the breach and the proof should generally be persuasive but there is usually no requirement that the interested party prove beyond a reasonable doubt that the loss occurred because of the breach. In response to a claim for breach of fiduciary duty the fiduciary will have the burden of proving that there was no connection between the breach and the loss claimed by the interested party.
If a fiduciary is unsure about what to do in a given situation and to avoid liability for breach of a duty, a fiduciary may seek the instructions of the chancery court, probate court before taking a particular action.
When a breach of duty occurs, the fiduciary is chargeable with any loss in the value of asset(s) as a result of the breach, any profit made by the fiduciary as a result of the breach, and any profit which would have accrued to the assets had there been no breach.
Hearings on Fiduciary Accountings
The Battle of Who’s Right and Who’s Wrong
In contested fiduciary accounting disputes, the chancery court judge has the final authority to decide the case.
Generally, in proceedings to settle the accounting of an executor, or trustee administrator, the burden of proof is upon the personal representative or the challenger, depending upon the circumstance of the particular case. Thus, when a personal representative files his/her accounting and someone file exceptions, the burden is to prove the bona-fides of the accounting upon the representative to establish its correctness and not on the claims of the objectors.
The Burden of proving an exception however falls upon the objector. Our courts have ruled in many cases that the burden of showing there was more assets in an estate than disclosed by the executor in their inventory rests upon the objector, and “must be sustained with reasonably certainty.” This same general standard applies when the objector claims that the property of the estate was of greater value than is shown by the accounting. Once this burden is met, the burden then shifts to the executor to establish the accuracy of the content of its accounting to the property.
Damages, Renedies and Sanctions in an Accounting Fight
When a fiduciary is held liable for a breach of duty, the courts have many options as to remedies. These remedies fall generally into four general categories: removal of the fiduciary, money damages, forfeiture of commissions, and other sanctions. Each of these categories is discussed below.
Removal of the Fiduciary if He or She is a Thief or Just Irresponsible
The general standards for removal of a fiduciary is set forth under N.J.S.A.§ 3B:14-21. The statute provides that the court may remove a fiduciary if the fiduciary “has embezzled, wasted or misapplied any part of the estate committed to his or her custody, or has abused the trust and confidence given to him or her under the law. Traditionally courts are reluctant to discharge an executor from office simply because (with the benefit of hindsight) the choice was unwise or improvident; still an executor can be removed from office upon a showing that he or she became the estate representative as a result of fraud, misconduct, or breach of trust.
A removed or discharged fiduciary must deliver to his or her successor all assets as of the date of discharge generally and then he or she must prepare, file and settle his/her accounts within 60 days after entry of judgement or within such time as the court may direct. Within 60 days after settlement of the accounts, he/she must pay over to his successor any balance due. (N.J.S.A.§ 3B:14-5. N.J.S.A.§ 3B:14-6) then provides:
A fiduciary who fails to account or who fails to comply with the provisions any order entered by the court is liable to a fine not exceeding the amount of the estate in the hands of the court.
A Judge Can Order a Forfeiture of Statutory Commissions Against a Fiduciary
Statutory commissions for service as a fiduciary have been denied in a variety of circumstances, such as where: (1) the fiduciary fails to invest funds; (2) the fiduciary fails to keep trust funds separate; (3) the fiduciary accepts gratuities from interested parties or others doing business with trust property and employees of the trust; (4) an unreasonable delay in rendering an accounting; (5) failure to keep an account or keep an account which is obscure; (6) the fiduciary uses funds personally; (7) money is lent to one of the fiduciaries without security.
Forfeiture of Commissions: Failure to Invest
When an executor fails to keep proper records of the estates accounts and/or has failed to make investments according to the direction of the Will by his/her negligence has been damaged in will not be allowed commissions.
Forfeiture of Commissions: Failure to Account Executors, Administrators & Trustees
Where a trustee has failed or neglected to keep an accounting of his or her investments and of the trust as a request for the trust funds, fails to have supporting records of his receipts and disbursement of the funds from the trust, and caused or contributed to litigation, no compensation will be approved.
Distribution of Non-Probate Estate Assets to Beneficiaries
What is the role of the Executor in getting the assets of the estate to the beneficiaries? The answer often depends on the nature of the assets to be distributed. Is there a distribution of non-probate assets, (2) is there a distribution of specific bequests, (3) who are the beneficiaries in the distribution of the residuary estate.
While perhaps surprising to many readers, non-probate assets are outside the scope of an Executor or Administrator’s responsibility to the estate. Non-probate assets are not counted in the Executor’s or Administrator’s commission or bonding obligation. An Executor who has knowledge of the existence of non-probate assets, should give that information to the intended beneficiary and facilitate the payment of any estate on inheritance taxes.
What are non-probate assets? First, non-probate assets can consist of assets such as life insurance, annuities, individual retirement accounts, and other retirement plans known as qualified plans. These assets are paid directly to the named beneficiaries. These accounts or policies are only paid to the estate if there is no named beneficiary., which then makes them a probate asset subject to the jurisdiction of the Executor. If there is a named beneficiary, the Executor or Administrator should simply provide a certified copy of a death certificate to the beneficiary so that he/she may claim the proceeds from said accounts or policies, but again facilitate the payment of any taxes due to the state or IRS. If no beneficiary is named, the Executor or Administrator will provide Letters Testamentary to the financial institution holding said asset and will eventually cause that asset(s) to be re-titled or paid over the estate. In my opinion, the Executor should go no further. Other attorneys disagree.
Then there are pay on death accounts commonly referred to as transfer-on-death (TOD) or paid-on-death (POD) accounts. These are generally bank accounts, but are also utilized with government bonds as well (i.e. EE, US Savings bonds, H bonds, etc). To claim these funds, the TOD or POD beneficiary must provide a certified copy of the death certificate to the custodian. The beneficiaries can obtain a copy of the death certificate at the municipality where the decedent resided at the time of his/her death.
Finally, assets can pass by law under New Jersey’s survivorship statute. Examples include accounts listed as joint tenants with right of survivorship. To claim the funds, the death certificate is produced by the surviving account holder and, by law, the funds are transferred to the joint surviving account holder.
With respect to real property, it is a misconception that legal title has to be immediately changed to remove the decedent’s name. Not true. It is not always necessary to transfer the ownership of property by deed from the estate to the surviving owner. When the property is finally sold or conveyed, the granter will merely recite the predecessor’s death in the deed recital.
Today, many financial institutions will only release on-half of the jointly owned/non-probate assets to the legal survivor until a waiver is obtained by the State of New Jersey, unless the beneficiaries are Class A beneficiaries (i.e., spouse, parent, children, or other lineal descendants). Whereupon the assets will be released immediately if a Form L-8 is executed at the financial institution. For more remote relatives and beneficiaries, some or all of the asset will not be released until a tax waiver is received from the state of New Jersey.
Not sure how to wind up the Estate or handle Non-Probate assets as the executor or administrator? If so, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing consultations if you are unable to come to our office.