N.J. Admin. Code § 18:26-11.1

Current through Register Vol. 56, No. 21, November 4, 2024

Section 18:26-11.1 - Consent to transfer; generally

(a) Except as otherwise indicated in this chapter, written consent to transfer or release (waiver) of any real property or any tangible or intangible personal property must be obtained from the Director prior to such transfer or release where:

1. Such property is held by an executor, administrator, trustee, individual, firm, association, partnership, organization, or corporation including any banking institution, trust company, or safe deposit company organized under the laws of New Jersey; national bank operating in this State; building and loan or savings and loan associations engaged in New Jersey; or credit unions chartered by the United States operating in this State; and

2. Such property belongs to or stands in the name of a resident decedent or in the names of a resident decedent and one or more persons, to an executor, administrator, or legal representative of a resident decedent, or upon his or their order or request, or, to the survivor or survivors when held in the joint names of a resident decedent and one or more persons, or upon his or their order or request.

(b) No waivers are required in estates of nonresident decedents, except for a transfer inheritance tax waiver for real property located in the State of New Jersey. See N.J.A.C. 18:26-11.4(c).

1. It must, however, be established in detail that the decedent was legally domiciled in a jurisdiction other than New Jersey to the satisfaction of the trustee, individual, firm, association, partnership, organization, or corporation (its transfer agent) including any banking institution, trust company, or safe deposit company organized under the laws of New Jersey; national bank operating in this State; building and loan or savings and loan associations engaged in New Jersey; or credit unions chartered by the United States operating in this State. To do this, the personal representative of the estate should file with the proper party an affidavit providing details as to domicile, including the following:

i. Place of residence and voting;

ii. Social and business affiliations;

iii. Jurisdictions where the last five income tax returns were filed prior to death;

iv. Date of commencement and length of actual residence in place claimed as legal domicile;

v. Whether decedent formerly resided in New Jersey and, if so, what facts are relied upon to establish abandonment of New Jersey and intention not to return.

2. If the party in possession or control of the property determines from the proofs submitted that decedent was legally domiciled outside of New Jersey, that party may transfer the stock or obligation of the corporation or any other tangible or intangible personal property without the written consent of the Director, permanently maintaining the affidavit as authority for the action taken.

(c) The Director waives the requirement to file a waiver in the case of certain transfers to Class "A" transferees, in the estate of New Jersey domiciled decedent. In order to satisfy a corporation or its transfer agent, including any banking institution, trust company organized under the laws of New Jersey, national bank operating in this State, building and loan or savings and loan association in New Jersey, or credit union chartered by the United States operating in this State that intangible assets may be released to the Class "A" transferee, an Affidavit of Waiver (Form L-8) can be executed by the Class "A" transferee or the personal representative of the decedent's estate.

1. If two or more executors or administrators qualify, the affidavit may be executed by one of them.

2. The Class "A" transferee can execute a Form L- 8 in all cases where under the terms of the account or instrument and applicable State law the Class "A" transferee has the right of survivorship or is the named beneficiary. Letters testamentary or of administration are not required to be attached as part of the affidavit when executed by the Class "A" transferee, except as provided in (c)3 below.

3. Where the Class "A" transferee has qualified as executor or administrator of the decedent's estate, intangible assets that pass to the Class "A" transferee under a will or law of intestate distribution may be released by the affidavit together with assets described in (c)2 above, provided that the Class "A" transferee's letters testamentary or of administration are attached and made a part of the Form L- 8 as provided in (c)1 above. Where the Class "A" transferee has not qualified as an executor or administrator of the decedent's estate, only intangible assets may be released by the Form L- 8 in accordance with (c)2 above.

4. A separate Form L- 8 is required for each institution, organization, or corporation releasing assets to a Class "A" transferee.

5. The Form L- 8 of waiver by the Class "A" transferee cannot be used for the following:

i. Real property;

ii. Tangible personal property transfers from a decedent to a Class "A" transferee;

iii. Where a disclaimer has been filed; or

iv. For transfers through a third party, such as a testamentary trust.

(d) Estate tax waivers are required if the decedent died after December 31, 2001. Estate tax waivers are not required if a decedent died on or prior to December 31, 2001.

(e) In the absence of the express approval of the Director, waivers are issued no earlier than 10 business days following the receipt of the tax payment.

N.J. Admin. Code § 18:26-11.1

Adopted by 50 N.J.R. 1624(a), effective 7/16/2018