The intention of avoiding probate in New Jersey is to protect your family from the expense, delay, and emotional stress normally associated with public court procedures during a challenging period. A well-drafted and funded Revocable Living Trust (RLT) is the single most potent legal vehicle for New Jersey residents to guarantee the orderly private administration of their estate upon death, helping them avoid probate in New Jersey.

Although New Jersey probate is generally considered simpler than in most other states, an RLT offers multiple financial and practical advantages (e.g., privacy, incapacity planning, facilitating asset transfer) that a Will will never even begin to provide. This guide will teach you step-by-step how to avoid probate in NJ with tested legal methods…and clarify confusing sections of the New Jersey probate procedures manual.

Wills vs. Trusts in New Jersey: Which is Superior to Avoid Probate in New Jersey?

A will does not prevent probate in New Jersey; it causes it. A Will is simply your instructions to the court in New Jersey (the NJ Probate Court, or Surrogate’s Court) on how you want your assets distributed and provides for a court-supervised process which must occur in order for the Will to be officially recognized and an executor appointed so that accounts can be moved.

• Straight to the point! Answer: Do you have to probate a will in NJ? Answered. The answer is yes, if you have nothing except a Will.
  
• A Will is extremely important — it names who you want to take care of your children and nominates your Executor, but at the end of the day, it’s just a letter or list to the court. A Trust, however, is a distinct legal entity that holds your belongings and permits you to forgo probate in New Jersey.
  

The Trust Path:

• When you establish an RLT, the titles to your assets (home, accounts) are transferred from your name and into the Trust’s name. When you die, the Trust doesn’t disappear; your chosen successor Trustee takes over to distribute the assets as you asked — not under the court’s watchful eye. It is the best way to avoid probate in New Jersey.
  

The Will Route:

• If you die alone with just a Will, the Will is submitted to the County Surrogate’s Court and it becomes a public probate or administration case. The Executor takes another 6 to 12 months playing by the court’s rules with the estate. This is the crux of what probate really is.
  

What is the Cost of a Revocable Living Trust in New Jersey? (Attorney vs. DIY)

Generally speaking, a Revocable Living Trust that was prepared by an attorney in New Jersey will cost between $1,500 and $4,000 for an individual or married couple (depending on the complexity of your finances and the attorney’s firm). 

This upfront price is a strategic investment specifically designed to remove Probate in New Jersey down the road, saving your family potentially tens of thousands in fees and months of delay after your passing.

• This cost is an up-front investment which saves your family thousands of dollars in legal fees and court costs after you are gone. Compare that cost to how much probate in NJ after death costs, if you add court costs plus now the presence of a New Jersey probate court attorney representing the estate.
  

Attorney-Drafted RLT ($1,500 – $4,000+):

• This amount will cover the cost to draft your RLT document and a Pour-Over Will (the Power of Attorney trust) as well as instructions on properly funding the Trust.
  

DIY Options ($400 – $1,000):

• DIY can be a false economy. Such planning raises the prospect of creating an “unfunded trust” which will not avoid probate in New Jersey and is subject to expensive remedial action before a New Jersey Probate Court.
  

What is an Unfunded Trust and Will it Still Avoid Probate in New Jersey?

• An unfunded Trust, in other words one that has no assets held in the name of the trust, is a worthless piece of paper and will not help to avoid probate in New Jersey. Any assets that remain in your individual name at death will need to be formally probated.
  
• This is the number one mistake that people make when trying to avoid probate in NJ. Establishing the Trust is just half the battle.
  

Funding is Everything:

• “Funding” your trust is the process of changing the legal ownership of your property. Non-funding results in the assets being subject to the default New Jersey probate process manual rules.
  

Probate Will Happen:

• An unfunded asset (i.e. not in Trust) will need to be “poured over” into the Trust by the Executor and probated via the Pour-Over Will, which ensures open court-process.
  

Do You Really Need A Trust If My Estate Is Below The Small Estate Limit?

Yes, even if your estate is less than the New Jersey small estate limit, you should establish a Trust because the Trust provides for both incapacity planning and asset privacy; things that a small estate affidavit does not do.

• The New Jersey Small Estate Affidavit (discussed in more detail below) only assists with distribution post-death.
  

Disability Protection:

• If you ever lose the capacity to handle your own affairs, the RLT enables your Successor Trustee to immediately take over and administer assets without a costly public process known as guardianship in New Jersey Probate Court. And there’s a big advantage here over just answering how to avoid probate in NJ.
  

Privacy:

• A small estate proceeding under the New Jersey probate procedures manual is public. The Trust ensures your assets and beneficiaries remain completely confidential.
  

Are Transfer-on-Death Deeds (TODDs) Available for Real Property in New Jersey?

No, the State of New Jersey has not adopted a TODD or beneficiary deed for real estate as an available form of property ownership. You can’t just write down in a document who you want to inherit your home without having it go through probate.

• This is an important difference because a lot of internet guides indicate that you should use a Transfer on Death Deed New Jersey for real property, but such a thing doesn’t actually exist in our state law. Some states (including New York) permit this, but if you want to save on probate in New Jersey, you’ll have to investigate other paths. This also explains why there is no such thing as New Jersey transfer on death deed real estate search.
  

The Trust is the Option:

• Deeding your real estate to your RLT and having a fully-funded trust is the only proactive, courtroom-tested means to avoiding probate in New Jersey of your residence.
  

The “Joint Tenancy Trap” – What are the Financial Consequences of Using Joint Ownership to Avoid Probate?

Unfortunately, when you title property as Joint Tenants with Right of Survivorship (JTWROS), although the asset will avoid probate, the downside is that you risk exposing your asset to the creditors and legal judgments of the co-owner as well as a divorcing spouse.

• It’s not worth sacrificing legal protection and control to avoid probate. If you use this method to avoid probate in New Jersey, the following could happen:
  
• Creditor Threats: If the co-owner gets into legal trouble (like a lawsuit or bankruptcy), their share of your property could be at risk of getting the attention of a judge.
  
• Tax Loss: This technique will cause a loss of the capital gains tax “step-up in basis,” thus, making this an inferior tax strategy than using an RLT to eliminate probate in New Jersey.
  

If New Jersey DOESN’T Permit TOD Deeds, Then How Do I Transfer My House Another Way Without Probate?

• The one major downside of the TOD Deed is that New Jersey doesn’t allow for it – making titling any real property into a Revocable Living Trust, itself, the only method – and trustworthy way to pass your house outside of probate. This is the final word on how to avoid probate in NJ for real estate.
  

• Tenancy by the Entirety: When you are a married couple, if your property is held as “Tenants by the Entirety”, it automatically goes to the surviving spouse outside of probate. However, when the second spouse dies, that house will go through probate – unless it has been put in an RLT.
  
• The Trust Solution: The RLT is the only way that one can effectively eliminate probate in New Jersey for the house after both spouses have died.
  

If You Can Avoid Probate in New Jersey, Do You Also Escape State Inheritance Taxes?

No, not all New Jersey Wills avoid the inheritance tax in NJ. These are entirely different legal concepts.

• Probate is the actual disposition of the asset.
  
• Inheritance Tax is all about the person to whom the asset is left.
  
• Assets transferred through an RLT remain in your taxable estate, and the inheritance of non-exempt heirs from these assets should be reported for Inheritance Tax purposes. You can escape probate in New Jersey, but you’re still on the hook for state tax.

The intention of avoiding probate in New Jersey is to protect your family from the expense, delay, and emotional stress generally associated with public court procedures during a challenging period. A well-drafted and funded Revocable Living Trust (RLT) is the single most potent legal vehicle for New Jersey residents to guarantee the orderly private administration of their estate upon death, helping them avoid probate in New Jersey.