Before the probate procedure is initiated it is necessary to determine whether there is a need to probate the Will. A Will does not need to be entered into probate if there are no assets in the decedent’s name solely at the time of death. In some instances where there are no assets in the decedent’s name solely a family may wish to put a closure to the death and may file the Will with the Surrogate’s Court for a filing fee of $5 per page. The cost of probate of the Will is $100 for the first two pages and $5 for each additional page, and $5 for each short certificate. The Will is assigned a docket number and is public record.
If the decedent has assets solely in his/her name at the time of death then the Will must be probated regardless of the value of the estate. You probate in order for the named executor in the Will to be given the authority to transfer the assets both real and personal to the estate.
It is necessary at the outset to ascertain certain information in order to probate the Will.
(See Information Sheet For Probate)
- Check the death certificate to determine which Surrogate’s Court the probate will be entered. The probate proceeding must be filed in the county where the decedent resided at the time of death.
- Check the Will to be sure that it is the original Will, not a conformed or plain copy. Only an original Will may be entered into probate by the Surrogate’s Court.
- Determine who the named executor is in the Will and whether he/she/they will qualify.
- Check to see if the Will is “self-proved” (N.J.S.A. 3B:3-4). If not, a witness needs to be located to execute a Proof of Witness.
- List all the assets solely in the decedent’s name in order to determine the number of short certificates that will be requested.
- List all immediate next of kin with names, addresses and ages, if minors. If there are any deceased next-of-kin then their issue must be named.
The probate of a Will can not occur until the eleventh day from the date of death. The procedure may be initiated in the Surrogate’s Court earlier but the issuance of short certificates will not occur until the eleventh day. This ten day period allows for the filing of a caveat by an heir at law or beneficiary in a prior last Will.
The probate process is initiated with the presenting of the original Will together with a certified copy of the death certificate and list of heirs at law to the Surrogate by the named executor. If the purported Will is adjudicated to be valid then the Application for Probate, an Authorization to Accept Service of Process, Executor Qualification and Child Support Verification are prepared by the Surrogate for signature by the Executor.
The executor will sign the Application for Probate in which he/she has asked the Surrogate to pass on the validity of the Will and to file it with the Superior Court. This application contains information on the executor and the heirs at law. The heirs at law and those persons who would have inherited if the decedent died intestate (with no Will). This allows for any of the listed heirs at law to contest the probate if cause arises even if not a named beneficiary in the Will. In 2009 an additional section was placed on the application known as Ronnie’s Law (N.J.S.A.3B:15-1(i)(1-4). Any person applying to be appointed executor of an estate must post a bond in cases where a beneficiary is developmentally disabled unless an exemption in the law applies. The exemptions are as follows: (1) If there is a court appointed guardian of the person and/or property of the developmentally disabled person no bond is required (2) If the person seeking the appointment is a family member within the third degree of consanguinity to the developmentally disabled person no bond is required and (3) if the total value of the estate does not exceed $ 25,000.00 no bond is required.
Before an executor can perform his/her duties, an Authorization To Accept Service of Process (Power of Attorney) must be executed in favor of the Surrogate empowering the Surrogate to accept service of process in any case in which the fiduciary, in his/her capacity as such, is a party. If someone sues the estate and personal service cannot be effected, service of process may be made upon the Surrogate. The Surrogate must mail a copy of the process to the fiduciary.
The executor must sign the Executor Qualification stating that he/she will administer the estate according to law. He /she will accept the position of executor, bring all assets into the estate, pay out all liabilities from the assets, follow the directions of the Will and present an accounting of the estate when required by law.
Under N.J.S.A. 3B:3-4 a Will prepared after 1978 should be "self-proved". This means that there is certain language at the end of the Will in which the testator and two witnesses attest that the instrument is a Last Will and Testament, the testator is over 18 years of age, of sound mind and under no undue constraint in signing this instrument. An Attorney at Law or Notary Public must swear and subscribe to this. A Will properly self-proved may be admitted to probate without further proof of proper execution.
When a Will is not “self-proved” one of the witnesses must appear before the Surrogate to execute a Proof of Witness. If the witness to the Will is outside the county or the state at the time of probate, proof of the execution of the Will must be submitted by deposition of the witness. At the time of application, the Surrogate will order a commission to another Surrogate (in state) or notary public (out of state) to take oath of the witness to the Will in the jurisdiction where the witness is located. A copy of the Will with an Order signed by the Surrogate requesting the deposition of the witness and the Proof of Witness form are sent to the person commissioned. The deposition of the witness is then taken under oath and certified by the person commissioned. The Proof of Witness is returned to the Surrogate.
In the case where both witnesses are deceased and the Will is not “self-proved” the signatures of both of the witnesses and the Testator must be proved by affidavit of persons who can identify the signature. One person may prove the signature of both witnesses.
When the Will is properly proven the Surrogate will enter a Judgment Admitting Will To Probate and issue Letters Testamentary which certifies the Will and is the authorization for the executor to act on behalf of the estate.
The Surrogate will also issue an Executor Short Certificate which the executor uses as proof of his/her authority to transfer or sell assets of the deceased. The number of short certificates requested will depend upon the number of institutions or agencies in which an asset needs to be dealt with for transferring the asset to the estate. The assets are those that are solely in the decedent’s name.
The Surrogate’s Court no longer has statutory authority to enter an Order Limiting Creditor. Pursuant to N.J.S.A.3:22-4 creditors of the decedent need present their claims to the executor in writing and under oath within nine months from the date of the decedent’s death. If a claim is not presented to the executor within the nine months from the date of the death, the executor is not liable to the creditor with respect to any assets which the executor may have delivered or paid in satisfaction of any lawful claims before the presentation of the claim.
After the Will has been entered into Probate, the executor must within 60 days of the date of the probate give Notice of Probate (R.4:80-6) to all beneficiaries under the Will and to all persons who would have inherited by intestacy (those next of kin listed on the Application For Probate). The notice in writing will state that the Will has been probated, the place and date of probate, the name and address of the executor and a statement that a copy of the Will shall be furnished upon request. A proof of mailing must be filed with the Surrogate within ten days thereof. If the names and addresses of any of those persons are not known, or cannot by reasonable inquiry be determined, then a Notice of Probate of the Will must be published in a newspaper of general circulation in the county naming or identifying those persons as having a possible interest in the probate estate. If by the terms of the Will property is devolved to a present or future charitable use or purpose, like notice and a copy of the Will must be mailed to the Attorney General of the State of New Jersey.
The executor is required to pay the debts of the decedent and any taxes due, to perform a Child Support Judgment search on each beneficiary, to make distribution to the beneficiaries, and if required, to provide an accounting of his/her administration of the estate. An informal accounting may be requested by creditors or beneficiaries named under the Will and should not be requested until one year from date of probate (N.J.S.A. 3B:17-2) unless good cause exists for a sooner accounting. If the executor refuses to comply with the request, an action may be brought in the Superior Court Probate Part to compel a formal accounting.
The Surrogate may not act when (1) a caveat is filed before entry of the judgment (2) a doubt arises on the face of the Will or a copy of the Will is presented (3) a non-resident’s Will is offered for probate and has no assets in that county (4) the Surrogate certifies the case to be one of doubt or difficulty; or (4) a dispute arises as to any matter.
If the Will presented for probate has not been properly executed or the witnesses cannot be located and/or proper execution cannot be proven the Surrogate will deny probate of a Will and enter an Order of Doubt or Difficulty. The matter will then be addressed by the Superior Court Chancery Division Probate Part upon filing of a Verified Complaint and Order To Show Cause. A Superior Court judge will then determine whether the Will may be entered into probate.
If, after a Will has been probated, another Will of a later date is found or if, after letters of administration have been granted, the existence of a Will is discovered, a Verified Complaint and Order To Show Cause must be filed with the Superior Court Chancery Division Probate Part. If on the return date, any person in interest contests the admission to probate of the after-discovered Will, the procedure followed is that of any other Will contest. If no contest is lodged, the later Will is proven before the Court. The estate will then be administered and distributed according to the terms of the after-discovered Will.
It should be noted that all papers that are filed with the Superior Court-Probate Part are filed with the Surrogate’s office. The Surrogate is acting in his/her capacity as the Deputy Clerk of that Court, Chancery Division, Probate Part.
Succeeding executor occurs when a prior executor who had qualified has died and not completed his/her responsibilities as executor.