Lien on and Transfer of a Decedent's Property: Tax Waiver Requirements
For Tax Professionals
New Jersey Transfer Inheritance Tax, whether levied and assessed or not, is a lien on all property owned by the decedent as of the date of his/her death for a period of 15 years, unless paid sooner or secured by bond. The law provides, with certain exceptions, that without the written consent of the Director (i.e. – tax waiver), banking institutions and other institutions, corporations and persons may not deliver or transfer any assets within their control or possession which belong to or stand in the name of a resident decedent, or in the joint names of a resident decedent and one or more persons (N.J.S.A. 54:35-5, N.J.S.A. 54:35-19).
For decedents who die after December 31, 2001, the New Jersey Estate Tax is a lien on all property of a decedent as of his or her date of death and that no property owned by a decedent as of his or her date of death may be transferred without the written consent of the Director, or pursuant to such rules as the Director may prescribe (N.J.S.A. 54:38-6).
The tax waiver form issued by the Division releases both the Inheritance Tax and the Estate Tax lien and permits the transfer of property for both Inheritance Tax and Estate Tax purposes.
Tax waivers are required to transfer the assets standing in the name of a decedent or in joint names with a decedent such as:
- New Jersey real property;
- Funds held in New Jersey financial institutions;
- Brokerage accounts or mutual funds doing business in New Jersey;
- Stock or bonds of a company incorporated in New Jersey or a New Jersey institution.
For information on obtaining a tax waiver go to: Inheritance Tax Filing Requirements | Estate Tax Filing Requirements
Exceptions to Waiver Requirements
- Non-Resident Decedents: Estate Tax waivers are not required for the estates of non-resident decedents. Inheritance Tax waivers are required only for real property located in New Jersey.
- Real Property Held as tenancy by the entirety Real property held by a husband and wife or civil union partners as tenancy by the entirety must be transferred without a tax waiver in the estate of the spouse who died first.
- The transfer of any assets, whether real or intangible, which stand in the name of a bona fide trust as of the date of a decedent's death, does not require a tax waiver.
- Transfers to savings accounts without a tax waiver
- Funds of a decedent on deposit in a checking account in any bank may be transferred to an interest-bearing account in the same bank in the name of the decedent or his/her estate without obtaining a tax waiver.
- Funds of a decedent on deposit in an Individual Retirement Account (IRA) or Keogh retirement plan account may be transferred to another account in the same bank without obtaining a tax waiver.
- Any certificate of deposit or any type of a preferred account containing funds of a decedent may be transferred to another account in the same bank without obtaining a tax waiver.
- The transfers permitted in (1) through (3) above are subject to the requirement that the banking institution promptly file a notice with the Division of Taxation Inheritance and Estate Tax Branch, PO Box 249, Trenton, New Jersey 08695-0249, containing the following information:
- Decedent's name;
- Date of death and domicile;
- Name and address of executor or administrator of estate;
- The account number, or certificate number, sought to be transferred and the balance on deposit or the maturity value as of the date of death.
- The bank is required to retain the same control over the substituted account as the original account until the New Jersey Inheritance Tax and the New Jersey Estate Tax are provided for and paid.
- Transfers from one fiduciary to another Bonds or stock of a New Jersey corporation or a national bank located in New Jersey, or any money deposited in any trust company, bank or other institution in the name of one court-appointed fiduciary as executor, administrator, trustee or guardian, may, upon the death of such fiduciary, be transferred without a tax waiver to, or on the order of, the legally appointed substitute for the deceased fiduciary.
- Transfer from joint fiduciaries to successors Bonds or stock of a New Jersey corporation or a national bank located in New Jersey or any money deposited in any trust company, bank or other institution in the names of two or more fiduciaries as executors, administrators, trustees or guardians, may, upon the death of one or more of such fiduciaries be transferred without a tax waiver, to, or on the order of, the surviving fiduciary or fiduciaries.
- Transfer of partnership interest A tax waiver is not required for the transfer of real or personal property, tangible or intangible, owned by a bona fide partnership in which a decedent had an interest.
- Transfer of assets held by nonresident custodian: A tax waiver is not required in order to transfer any assets held by a nonresident custodian on behalf of a resident or nonresident decedent.
- Transfer of tangible or intangible personal property
- A waiver is not required in order to transfer all other tangible or intangible personal property, including but not limited to:
- Vacation and sick leave pay;
- Payment under pension, profit sharing, bonus plans or stock purchase plans;
- All automobiles;
- Accounts receivable;
- Household goods;
- Personal effects;
- Funds held in an account in the name of a funeral director in trust for a decedent in accordance with the provisions of N.J.S.A. 2A:102-13 (advance funeral payment);
Funds to a decedent's credit in a credit union plan organized under N.J.S.A. 17:13-26 et seq. in addition to any matching sums paid under any type of credit union plan in the form of a life insurance where said matching sum is directed to be paid to a decedent's estate or his or her executor or administrator. However, funds held under the Federal Credit Union Act must be reported and a waiver obtained.
- All property, including property that can be transferred without a waiver, must, nevertheless, be reported on a decedent's Inheritance or Estate Tax return.
- Blanket waiver
- A banking institution, trust company or safe deposit company organized under the laws of this State, a national bank operating in this State, a building and loan or savings and loan association organized in this State, a credit union chartered by the United States and operating in this State, a corporation or person may release without a tax waiver any amount up to 50 percent of the entire amount of funds on hand to any of the following:
- An executor;
- Legal representative of the decedent;
- Surviving joint tenant;
- Cestui que trust; or
- The estate of a minor where title to said funds are held in the name of a custodian for said minor without the written consent of the Director, upon the application of such proper party to the institution, association, organization, corporation or person above mentioned.
- This section applies to each institution, association or organization, corporation or person listed above with whom a decedent has any funds on deposit, including Certificates of Deposit, and is limited to no more than 50 percent of the funds in the entire account whether such account is held in the decedent's name only or jointly with another so that where the decedent holds an account jointly, only one half of the funds may be released, not the half claimed by the joint owner and an additional half of the funds belonging to the decedent.
- In addition to the amount permitted to be released by an institution, association, organization, corporation or person above mentioned, institutions, associations, organizations, corporations, or persons may, without written consent of the Director:
- Pay any and all checks drawn on any account owned by a decedent individually, jointly, or otherwise, when said checks are issued prior to death and presented for payment within 10 days following the decedent's date of death; except that in the event an executor, administrator, or other proper party above mentioned in this section shall apply for a release of 50 percent of the funds on deposit after 10 days from the decedent's death, the institution, association, organization, corporation, or person mentioned in this section holding the funds shall, after having deducted the amount of any checks issued prior to and presented for payment within 10 days of the decedent's death, release 50 percent of the balance in a decedent's account to the proper party upon application and without the written consent of the Director;
- Pay any checks in any amount for which there are sufficient funds held in deposit, drawn on any account owned by a decedent individually, jointly or otherwise, representing full or partial payment of any New Jersey Inheritance or Estate Taxes and made payable to New Jersey Inheritance and Estate Tax;
- Liquidate the loan of any decedent who has pledged the pass book representing a savings account as collateral for a loan, where upon the death of such a decedent the loan is in default and then make 50 percent of the remaining funds available under the blanket waiver; but
- Securities of a New Jersey Corporation registered in the name of a decedent and issued by any bank, or savings and loan association situated in this State, are not subject to the Blanket Waiver rule provided for in this section. Therefore, the written consent of the Director must be obtained in order to transfer or release such assets.
- The Director reserves the right to direct at any time that any sum or sums not yet paid over shall be withheld by the informant pending further order of the Director where that course is deemed imperative to protect the interest of the State.
- Funds held in a banking institution A banking institution, trust company or safe deposit company organized under the laws of the State of New Jersey, national bank operating in the State of New Jersey, building and loan or savings and loan association organized under the laws of the State of New Jersey, a credit union chartered by the United States operating in the State of New Jersey, or a corporation, or a person may, without a tax waiver, release or Transfer assets held by a decedent as custodian for a minor pursuant to N.J.S.A. 46:38-1 et seq. or as rental security deposits under the provisions of N.J.S.A. 47:8-19 et seq.
- Funds held in bank accounts Where funds are held on deposit in any bank to the credit of a person and payable on the death of such person to a named beneficiary, upon the death of the named beneficiary, no tax waiver is required to transfer or release the funds to such person. However, a tax waiver is required to transfer or release such funds to the beneficiary upon the death of the principal.
- Transfer of collateral A State bank, state banking association, trust company, national bank, national banking association, safe deposit company or other institution, having in its possession, custody or control, securities or other assets pledged as collateral for a loan of a decedent, may, for the purpose of liquidating a loan or other debt due from a resident decedent:
Release of Safe Deposit Box Contents : N.J.S.A. 54:35-19 provides that the contents of a safe deposit box standing in the name of a decedent either individually, jointly or otherwise may not be released without at least a 10-day notice to the Director of the intended delivery and the retention of sufficient assets to pay any tax and interest which may be assessed on the assets. The statute provides that the Director may examine the decedent's assets contained in a safe deposit box. On December 13, 2016, the Director re-issued the blanket waiver originally issued in 1992 authorizing the immediate release of the contents of a safe deposit box. The waiver is effective for the period from January 1, 2017, to January 1, 2022.
- Transfer such collateral from the name of the decedent to its own name upon receiving the written consent of the director; or
- Sell such collateral to satisfy a loan of a decedent without the written consent of the director, except that where the collateral pledged consists of the stock of a New Jersey corporation, such stock cannot be transferred on the books of such corporation without the written consent of the director. If any excess monies are received from a sale, the written consent of the Director must be obtained before delivery of such excess money to a proper party in interest; or
- Deliver any collateral to the executor or administrator of a decedent upon the full payment of the loan or debt without the written consent of the director.