If the decedent has assets in his/her name alone then the Will must be probated regardless of the value of the estate. You probate in order to nominate an executor/trix who is 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 )
1. Check the death certificate to determine which Surrogate’s Court the probate will be entered. The probate must be done in the county where the decedent resided.
2. Check the Will to be sure that it is the original Will, not a conformed copy. Only an original may be entered into probate.
3. Determine who the named executor/trix is in the Will and whether he/she will qualify.
4. 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. .
5. List all the assets of the decedent in order to determine the number of short certificates that will be requested.
6. List all 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 the proper degree of kinship or beneficiary in a prior last Will.
The probate process is initiated with the presenting of the original Will together with the original death certificate to the Surrogate by the executor. If the purported Will is adjudicated to be valid then the Application for Probate, an Authorization To Accept Service of Process and an Executor Qualification are prepared by the Surrogate.
The executor/trix 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 next of kin. The next of kin given must be of the same degree of kinship had the decedent died intestate. This allows for any of the listed next of kin to contest the probate if cause arises even if not a named beneficiary in the Will.
Before an executor/trix 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 cause 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 at the address on the Authorization.
The executor must sign the Executor Qualification that he will administer the estate according to law.
Under N.J.S.A. 3B:3-4 a Will prepared after 1978 should be "self-proved". This meaning 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 on the 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 in the jurisdiction where the deposition is to be taken of the witness to the Will. 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 the witnesses and the Testator must be proved. 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/trix to act on behalf of the estate.
The Surrogate will also issue an Executor Short Certificate which the executor/trix uses as proof of his/her authority to transfer or sell assets of the deceased. The number of short certificates needed 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.
When the debts of an estate are uncertain, an executor/trix may apply with the Surrogate for an Order Limiting Creditors. This order is simply a notice to creditors that they are to present to the fiduciary within 6 months of the date of the order their claims in writing, under oath, specifying the amount claimed by them and the particulars of the claim. This enables the fiduciary to determine within a reasonable length of time whether the estate is solvent. It also assists the fiduciary in settling the estate without any undue delay. If an Order Limiting Creditors has been filed and the claim of a creditor is not presented within 6 months, then the fiduciary can distribute assets and not be liable to any creditor who has presented a claim. If a claim is presented to a fiduciary, it need not be accepted. The fiduciary has 3 months in which to dispute the claim. If the claim is disputed, then the claimant must commence an action on the claim within 3 months after receiving the notice of dispute. If the creditor does not commence an action within that time, the fiduciary would not be liable to him/her with respect to assets delivered or paid over before the commencement of any action.
After the Will has been entered into Probate, the executor must within 60 days of the date of the probate do 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/trix 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 only the next-of-kin given on the Application for Probate or beneficiaries named under the Will and should not be requested until one year from date of probate. If the executor/trix refuses to comply with the request, an action may be brought in the Superior Court Probate Part for a formal accounting.
A Surrogate will deny probate of a Will if the Will was not properly executed or the witnesses cannot be located and proper execution cannot be proven.
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, 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 Complaint and Order To Show Cause must be filed with the Superior Court- 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 who is Deputy Clerk of that Court.
Succeeding executor occurs when a prior executor who had qualified has died.