Does a House Have to Go Through Probate in New Jersey?

Not always: in New Jersey, a house goes through probate when it was in the name of the person who died alone. A house owned by spouses as tenants by the entirety, or by joint owners with a right of survivorship, passes to the surviving owner without probate, and a house titled in a trust is handled by the trustee.

I'm Dennis Mark Interdonato with The Dennis Mark Group at Keller Williams Realty Ocean Living. Before anyone prices or lists an estate home in Monmouth or Ocean County, the first thing to find out is how the house was owned, because that decides who can sign. Here's what the two county Surrogates say.

When does a house go through probate in New Jersey?

When it's in the decedent's name alone. The Monmouth County Surrogate says a will is probated when the person who died had assets in their name only, and the Ocean County Surrogate's planning guide says the same thing: probate is done when someone dies with assets in their name alone.

The Ocean County guide adds that a house in the decedent's name alone passes under the will, or under New Jersey's intestacy laws if there's no will. Either way, someone needs authority from the Surrogate to sell it: an executor with Letters Testamentary or an administrator with Letters of Administration.

How does joint ownership change things?

The Ocean County guide explains three ways people commonly own a house together:

• Tenants by the entirety. Real estate owned by spouses or domestic partners this way becomes the sole property of the survivor.
• Joint tenants with right of survivorship. When the deed says so, the interest becomes the property of the surviving owner at death.
• Tenants in common. When two or more people other than spouses or domestic partners own a house together, each owns an individual share as tenants in common unless the deed says they're joint tenants with right of survivorship.

With tenants in common, the deceased owner's share doesn't pass to the other owners on its own. The estate's attorney will tell you how that share is handled, which usually means the estate has a seat at the table when the house is sold.

Does a house in a living trust go through probate?

A house titled in a trust isn't in the decedent's name alone, so it's handled by the trustee under the trust's terms. The Monmouth County Surrogate's guide describes a trust as an agreement that lets a trustee administer property for a beneficiary, created on its own or through a will. A trust created inside a will is a different thing, because the will itself still goes through probate. The estate's attorney can tell which kind you have. My article on selling a house held in a living trust covers how the trustee signs.

What about very small estates?

New Jersey has a shortcut for small estates without a will, and it counts the house too. Under N.J.S.A. 3B:10-3, when the total value of the real and personal assets won't exceed $50,000, a surviving spouse, civil union partner or domestic partner can file an affidavit with the Surrogate instead of a full administration. Under N.J.S.A. 3B:10-4, when there's no surviving spouse or partner and the total won't exceed $20,000, an heir can do the same with the written consent of the other heirs. The Ocean County guide says these affidavits can't be issued until the sixth day after death.

Because the limits include the house, they only fit very small estates. The attorney will tell you whether yours qualifies.

Can't someone use the power of attorney instead?

No. The Ocean County guide says a power of attorney automatically ends at the death of the person who signed it, and the Monmouth County guide says the same about a durable power of attorney. After the death, authority to sell comes from the Surrogate, the trust, or the deed's survivorship terms.

Does skipping probate mean skipping the inheritance tax waiver?

Not necessarily. The NJ Division of Taxation's Guide to Being an Executor says real estate transfers always require its Form 0-1 waiver. Form L-9, the short request for a real estate waiver, can be filed by a joint tenant as well as an executor or administrator. The one clear exception the Division gives: a house held as tenants by the entirety with a surviving spouse needs no waiver, and none is issued. Read more about the inheritance tax waiver for a house.

How do you find out how the house was owned?

1. Look at the deed. It names the owners and, for joint owners, how they held title. If nobody has a copy, the estate's attorney or a title company can get one.
2. Ask about a trust. If there's a trust agreement, the attorney will check whether the house was ever deeded into it.
3. Bring both to the attorney. They confirm who has authority and what the Surrogate, if anyone, needs to see.

While that's being sorted out, the house can still get ready. I can value it, plan the estate sale and clean-out and line up repairs, so it's ready the week the attorney says go. Start with my home value tool, read the Estate & Probate Guide, or see how I handle estate home sales.

Frequently Asked Questions

Does a house owned by a married couple go through probate in New Jersey?

Not when it was held as tenants by the entirety. The Ocean County Surrogate's guide says it becomes the sole property of the surviving spouse.

Does a house with a surviving joint owner need probate?

If the deed made them joint tenants with right of survivorship, the Ocean County guide says the interest becomes the survivor's. Tenants in common are different, so check the deed.

Is probate expensive in New Jersey?

The Surrogate's fees are set by state law, and the Ocean County guide calls probate a relatively inexpensive process. Attorney and other costs depend on the estate.

Who decides whether a house needs probate?

The estate's attorney, after reading the deed, the will and any trust documents.

This is general information, not legal, tax or lending advice. The estate's attorney can tell you how your house was held and what that means.

About the author

Dennis Mark Interdonato is a REALTOR® and Master CDRE® who leads The Dennis Mark Group at Keller Williams Realty Ocean Living in Point Pleasant, NJ, helping buyers and sellers throughout New Jersey make their next move, with Monmouth and Ocean County as home base. Read more about Dennis Mark.

Keep reading

• What happens to a house when someone dies without a will
• Selling the house after a spouse dies
• The Estate & Probate Guide
• Have a question this didn't answer? Send it to Dennis Mark.