Considerations When Inheriting Real Property From An Estate

When a person owning real estate passes away, title to the real estate cannot be transferred unless an Executor (in the case of a decedent dying testate with a properly executed Last Will and Testament) or an Administrator (when a decedent dies intestate, without a Last Will and Testament) is appointed by the Surrogate to handle the affairs of the estate.  An exception is when the decedent owned property with a spouse as tenants by the entirety, in which case title passes by operation of law to the surviving spouse and it is not necessary to formally transfer title in order for the surviving spouse to be vested with title.  Similarly, a joint tenant with right of survivorship takes title by operation of law.

If the decedent was a non-resident owning real property in New Jersey, an exemplified copy of the non- New Jersey probate proceedings must be filed with the Surrogate of each county in New Jersey in which the decedent owned real property.  New Jersey does not require ancillary probate to transfer title to real estate; filing the exemplified copy of the foreign jurisdiction’s probate proceedings is sufficient to allow the Executor or Administrator to transfer real property located in New Jersey.  (NJS 3B:3-27)

If a Will is not admitted to probate in the state in which the decedent was domiciled, the Will may be admitted to probate in New Jersey and an Executor appointed. (NJS 3B:3-28)

A problem may arise where an original Will is filed in a foreign jurisdiction but not admitted to probate and an Executor or Administrator not appointed.  It is important that a formal probate proceeding be conducted in the foreign jurisdiction with the inventory recognizing that there are out-of-state assets; otherwise,  there is no probate proceeding to file in New Jersey and no original Will available to file pursuant to NJS 3B:3-28.