"New Jersey probate"

What happens if you believe that a loved one’s last will and testament is not valid? Under New Jersey probate law, if there is a last will and testament, it must be probated (filed) with the surrogate in the county where the decedent resided. The will’s terms control the distribution of the decedent’s assets. However, there are a number of reasons why a will can be challenged. If the challenge is successful, then the will is voided and the probate assets will be distributed either by a previously executed will or the laws of intestacy.

The simplest way to challenge a will is before it is probated. In New Jersey, you cannot probate a will until at least ten days following the date of death. Any time before the will is probated a caveat can be filed with the court and this will prevent probate of the will. Then any disputes regarding the will’s validity will be resolved before the court permits it to be probated.

The will’s validity can also be challenged after it has been probated. To challenge a will under New Jersey probate law you must be able to prove one of the statutory reasons which include undue influence, lack of capacity, fraud, forgery, revocation and mistake. There is a short time period to challenge a will, if you are seeking to challenge a will and you reside in New Jersey the statute of limitation is four months and if you are an out of state resident the statute of limitation is six months. The most often encountered bases of a will challenge are undue influence and lack of capacity.

To challenge a will based upon undue influence, you must show “coercion exerted [which] may be mental, moral or physical, or all three, but it must be such as to pre-empt the testator from following the dictates of his own mind and will and accepting instead the domination and influence of another.” Essentially the question here is whether the person who signed the will did so of his own free will without influence or pressure from someone who benefitted from the terms of the will. The person challenging the will must prove that a person in a “confidential relationship” with the testator unduly influenced the terms of the will, and that there were “suspicious circumstances” surrounding the execution of the will. To determine whether there was undue influence the courts will look at many factors, including: if the terms of this will are a significant change to a prior existing will; the age and health of the testator at the time the will was signed; if the testator lived with or under the supervision of the person benefitting from the will; if the person in the confidential relationship with the testator is benefitting from the terms of the will; and if the person benefitting from the will hired the lawyer to prepare the will.
Will challenges are also frequently based upon the testator’s lack of capacity to make the will. To successfully challenge a will for lack of capacity under New Jersey estate law, it must be shown that at the time the will was executed, the testator did understand: 1) the nature and value of the property he owned; 2) the identity of the “natural objects of his bounty” (the family members would receive his property upon his death if he did not have a will); and 3) the effect of the terms of his will.
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When a person dies owning assets, probate is often required to transfer the title. Some assets are “probate assets.” These assets can only be transferred after an executor or administrator has been appointed by one of the New Jersey Surrogates. Each county in New Jersey has its own Surrogate. The county where probate is initiated is determined by the decedent’s residence. If that person died with a will, the executor named in the will will be appointed by the Surrogate, then the assets will be transferred to the beneficiaries named in the will by that executor. If the person died without a will, the surrogate will appoint an administrator, then the assets will be transferred according the New Jersey Intestacy Statutes by the administrator.

There are, however, assets which can be transferred without probate. These assets are transferred to a designated beneficiary under contract law. Examples include: the joint tenant of real estate automatically becomes the sole owner of that real property; the “payable on death” beneficiary on a bank account takes ownership of the entire account; the named beneficiary on a contract for life insurance will be paid the proceeds of the policy without the need for the executor or administrator to take any action. Other assets which typically pass without the need for probate include IRAs, 401(k)s, and employee death benefits. Determining if an asset must go through probate to effectuate transfer is dependent upon how the title to the asset was held at the time of the person’s death.

Personal property, including stocks, bonds and bank accounts, vehicles and real property which are held solely in the decedent’s name require probate for transfer to the beneficiary. These assets are referred to as “probate property” and are transferred to the people designated in the will, or if there is no will, to the people designated by New Jersey’s laws of intestacy.

If probate is required, this is done at the New Jersey Surrogate’s Court in the county where the decedent resided. A will cannot be probated until ten days following the death of the testator (the person who executed the will). The person who is named executor in the will must appear at the Surrogate’s County with the original will, an original certified death certificate, the names and addresses of the next of kin (the surviving family members), a check to pay the Surrogate’s fees for probating the will, and valid identification.
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