A probate matter The life of a probate matter in New Jersey, step by step: every station, its clock, and the Rule of Court behind it

The line at a glance

Every stop the paper makes, in order. Tap a stop to jump to it.

1. Pr1The will goes to the SurrogateCounty where the decedent was domiciled at death; recorded on filing
   1. If contested: C1 to C3, then back at Pr4.
   2. C1Caveat: the Surrogate must stopFiled with the Surrogate before the Surrogate's judgment
   3. C2Complaint and order to show cause, Probate PartReturn date fixed on the order; served as R. 4:67-3 provides
   4. C3Challenge to a probate already grantedWithin 4 months after probate or letters; 6 months for a challenger who lived out of state; fraud on the court, a reasonable time
   1. If no one has offered the will: W1, then back at Pr2.
   2. W1A will nobody has offeredReturn date fixed on the order to show cause
2. Pr2Letters, or a judgment of probateWhen the proofs are in and nothing under R. 4:82 stops the Surrogate
3. Pr3Notice of probateWithin 60 days after probate; proof of mailing to the Surrogate within 10 days after that
4. Pr4The accountingComplaint filed at least 20 days before the account is settled; in-state parties served at least 20 days before the return date
5. Pr5Audit, exceptions, commissionsExceptions at least 5 days before the return day; affidavit of services at least 20 days before the account is settled
6. Pr6Distribution and dischargeAfter judgment on the account, or by the written agreement of everyone interested

Stop by stop

1. Pr1 The will goes to the Surrogate

   Clock: County where the decedent was domiciled at death; recorded on filing

   Whoever the will names as executor, or the next of kin who wants letters of administration, files an application with the Surrogate's Court of the county where the person lived at death, sworn, with the death certificate and, where a bond is required, an affidavit of the value of the personal estate. The Surrogate records it. Nobody goes to the Superior Court unless a contest or a doubt sends them there.

   What the rule says 2 sources

   “The application for the probate of a will or for letters of administration shall be filed with the Surrogate's Court of the county in which the decedent was domiciled at death, or if at that time the decedent was not domiciled in this State, then with the Surrogate's Court of any county in which the decedent left any property or into which any property belonging to the decedent's estate may have come.”

   R. 4:80-1(c) · as code

   “Except in an application for substitutionary letters, the application shall be accompanied by a certificate of death or other competent proof thereof, unless for good cause dispensed with; and in all applications where a bond is required of the person applying for letters, the application shall be accompanied by an affidavit of the value of the personal estate.”

   R. 4:80-1(b) · as code

   Fork. If contested, the paper leaves the main line here for C1 and comes back at Pr4.

   Fork. If no one has offered the will, the paper leaves the main line here for W1 and comes back at Pr2.

2. Side rail. If no one has offered the will: W1, off the main line at Pr1.

   1. W1 A will nobody has offered

      Clock: Return date fixed on the order to show cause

      Someone believes another person is holding the will, or knows where it is, and nobody has offered it for probate. A summary action under R. 4:83 makes that person come in and answer, and the court can order the paper lodged with it for probate. If the will turns up by the return date and nobody objects, the Surrogate takes it from there and the line rejoins at the letters, unless a caveat has been filed or the will itself raises a doubt.

      What the rule says 2 sources

      “A summary action pursuant to R. 4:83 for the discovery or production of any paper purporting to be the will of any decedent, which has not been offered for probate, may be instituted by any person in interest by filing a complaint alleging a belief that any person has the paper in his or her possession or has knowledge of its existence or whereabouts.”

      R. 4:95-1 · as code

      “If the will is produced on or prior to the return date of the order to show cause and no objection is received, the Surrogate may enter an order that it be lodged for probate and thereafter proceed with probate of the will unless a caveat thereto has been filed or doubt arises from the face of the will.”

      R. 4:95-1 · as code

   Rejoins. Back on the main line at Pr2.

3. Pr2 Letters, or a judgment of probate

   Clock: When the proofs are in and nothing under R. 4:82 stops the Surrogate

   The Surrogate proves the will by its witnesses and issues letters testamentary to the executor, or letters of administration when there is no will. A witness who lives out of state gives a witness-proof on a commission; if every witness is dead, one person who knew their handwriting proves all the signatures. Between people equally entitled, a New Jersey resident gets the letters before a nonresident.

   What the rule says 3 sources

   “If any subscribing witness to a will of any person resident or nonresident in this State, at death resides or is out of the State, the Surrogate's Court may issue a commission with a photocopy of the will attached authorizing the taking of the deposition of the witness in the form of a witness-proof.”

   R. 4:80-2(a) · as code

   “If all witnesses are deceased, the signature of each such witness may be proved by one person, and the same person may prove all signatures.”

   R. 4:80-2(b) · as code

   “As between persons equally entitled, the Surrogate's Court in granting letters shall give preference to residents of this State over nonresidents, unless the best interest of the estate will not thereby be served.”

   R. 4:80-5 · as code

4. Pr3 Notice of probate

   Clock: Within 60 days after probate; proof of mailing to the Surrogate within 10 days after that

   The personal representative mails every beneficiary, and everyone the application had to list, a written notice that the will was probated, where and when, with the representative's name and address and an offer of a copy of the will, then files proof of mailing with the Surrogate. Anyone who cannot be found gets notice by publication; a charitable gift means the Attorney General gets the notice and a copy of the will.

   What the rule says 2 sources

   “Within 60 days after the date of the probate of a will, the personal representative shall cause to be mailed to all beneficiaries under the will and to all persons designated by R. 4:80-1(a)(3), at their last known addresses, a notice in writing that the will has been probated, the place and date of probate, the name and address of the personal representative and a statement that a copy of the will shall be furnished upon request. Proof of mailing shall be filed with the Surrogate within 10 days thereof.”

   R. 4:80-6 · as code

   “If by the terms of the will property is devoted to a present or future charitable use or purpose, like notice and a copy of the will shall be mailed to the Attorney General.”

   R. 4:80-6 · as code

5. Side rail. If contested: C1 to C3, off the main line at Pr1.

   1. C1 Caveat: the Surrogate must stop

      Clock: Filed with the Surrogate before the Surrogate's judgment

      Anyone who means to fight the will files a caveat with the Surrogate before the Surrogate acts. From that moment the Surrogate's Court cannot act on the estate, nor in any matter that is disputed, doubtful on the face of the will, or about a lost will, without an order or judgment of the Superior Court. The line leaves the Surrogate's counter for the courthouse.

      What the rule says

      “Unless specifically authorized by order or judgment of the Superior Court, and then only in accordance with such order or judgment, the Surrogate's Court shall not act in any matter in which (1) a caveat has been filed with it before the entry of its judgment; (2) a doubt arises on the face of a will or a will has been lost or destroyed; (3) the application is to admit to probate a writing intended as a will as defined by N.J.S.A. 3B:3-2(b) or N.J.S.A. 3B:3-3; (4) the application is to appoint an administrator pendente lite or other limited administrator; (5) a dispute arises before the Surrogate's Court as to any matter; or (6) the Surrogate certifies the case to be of doubt or difficulty.”

      R. 4:82 · as code

   2. C2 Complaint and order to show cause, Probate Part

      Clock: Return date fixed on the order; served as R. 4:67-3 provides

      Whoever wants the will admitted, or thrown out, files a complaint in the Chancery Division, Probate Part, and gets an order to show cause directed to everyone else interested. Probate Part actions run in a summary manner under R. 4:67, so this is the express from station S1 with a different destination; the Surrogate, as deputy clerk, can fix the return date unless the case is one of doubt or difficulty.

      What the rule says 2 sources

      “Unless otherwise specified, all actions in the Superior Court, Chancery Division, Probate Part, shall be brought in a summary manner by the filing of a complaint and issuance of an order to show cause pursuant to R. 4:67. The Surrogate, as Deputy Clerk, may fix the return date of the order to show cause and execute the same unless the procedure in a particular case raises doubt or difficulty.”

      R. 4:83-1 · as code

      “In any case in which, under R. 4:82, the Surrogate's Court may not act, any person in interest may file a complaint and apply for an order directed to all other interested parties to show cause why the relief sought should not be granted. Service shall be as provided by R. 4:67-3.”

      R. 4:84-1 · as code

   3. C3 Challenge to a probate already granted

      Clock: Within 4 months after probate or letters; 6 months for a challenger who lived out of state; fraud on the court, a reasonable time

      If the Surrogate already admitted the will or issued letters before anyone objected, the aggrieved person files a complaint for an order to show cause why the probate should not be set aside or the letters vacated. After four months the door narrows to the R. 4:50-1 grounds and fraud on the court. Whatever the judge decides, the estate goes back onto the main line at the accounting.

      What the rule says 2 sources

      “If a will has been probated by the Surrogate's Court or letters testamentary or of administration, guardianship or trusteeship have been issued, any person aggrieved by that action may, upon the filing of a complaint setting forth the basis for the relief sought, obtain an order requiring the personal representative, guardian or trustee to show cause why the probate should not be set aside or modified or the grant of letters of appointment vacated, provided, however, the complaint is filed within four months after probate or of the grant of letters of appointment, as the case may be, or if the aggrieved person resided outside this State at the time of the grant of probate or grant of letters, within six months thereafter.”

      R. 4:85-1 · as code

      “If relief, however, is sought based upon R. 4:50-1(d), (e) or (f) or R. 4:50-3 (fraud upon the court) the complaint shall be filed within a reasonable time under the circumstances.”

      R. 4:85-1 · as code

   Rejoins. Back on the main line at Pr4.

6. Pr4 The accounting

   Clock: Complaint filed at least 20 days before the account is settled; in-state parties served at least 20 days before the return date

   The contest, if there was one, has rejoined the line. When the estate is ready to close and not everyone will sign off, the fiduciary settles the account by a complaint and an order to show cause in the Chancery Division, Probate Part, in the county that appointed them: the complaint names everyone interested, summarises the account, annexes it and asks that it be allowed. An interested person who is tired of waiting can file the complaint instead and compel the account.

   What the rule says 4 sources

   “Actions to settle the accounts of executors, administrators, testamentary trustees, non-testamentary trustees, guardians and assignees for the benefit of creditors shall be brought in the county where such fiduciaries received their appointment. The action shall be commenced by the filing of a complaint in the Superior Court, Chancery Division, and upon issuance of an order to show cause pursuant to R. 4:83.”

   R. 4:87-1(a) · as code

   “An action may be commenced by an interested person to compel a fiduciary referred to in paragraph (a) of this rule to settle his or her account, and, in appropriate circumstances, to file an inventory and appraisement.”

   R. 4:87-1(b) · as code

   “shall be filed at least 20 days prior to the day on which the account is to be settled.”

   R. 4:87-2(e) · as code

   “If the names and addresses of all parties interested in the account are known, the order to show cause together with a copy of the complaint, both certified by plaintiff's attorney to be true copies, shall be mailed by registered or certified mail, return receipt requested, as follows: to all such persons who reside in the State at least 20 days prior to the return date; to all such persons who reside outside this State but within a state of the United States or the District of Columbia, at least 30 days prior to the return date; and to all such persons who reside outside the United States at least 60 days prior to the return date.”

   R. 4:87-4(a) · as code

7. Pr5 Audit, exceptions, commissions

   Clock: Exceptions at least 5 days before the return day; affidavit of services at least 20 days before the account is settled

   The Surrogate, as deputy clerk, audits the account and reports to the court on anything that looks wrong. Any interested person can serve written exceptions to any item or omission, including to the commissions and the lawyer's fee being asked for. A fiduciary who wants commissions on corpus files an affidavit spelling out the services rendered and the amount claimed.

   What the rule says 3 sources

   “The Surrogate as deputy clerk of the court shall audit the accounts of all fiduciaries unless otherwise ordered by the court pursuant to R. 4:53-7(b), shall place the same on file at least 20 days prior to its presentation to the court, and shall make a report to the court upon the audit not later than the day on which the account is settled.”

   R. 4:87-6 · as code

   “In all actions for the settlement of accounts, other than plenary actions, any interested person may, at least 5 days before the return of the order to show cause or within such time as the court allows, serve the accountant written exceptions, signed by that person or his or her attorney, to any item in or omission from the account, including any exceptions to the commissions or attorney's fees requested.”

   R. 4:87-8 · as code

   “If the allowance of such commissions is within the discretion of the court, the applicant therefore shall, upon every application for commissions on corpus, at least 20 days prior to the day on which the account is settled, file an affidavit stating in detail the nature of the services rendered in administering the estate and specifying the amount of the commissions requested.”

   R. 4:88-1 · as code

8. Pr6 Distribution and discharge

   Clock: After judgment on the account, or by the written agreement of everyone interested

   Judgment on the account fixes what the fiduciary holds and who gets it; the estate is paid out and the bond is released. Competent adults can agree in writing to skip the accounting on any separable part. A representative who cannot go on can ask the Surrogate for a voluntary discharge, with a successor lined up and every party in interest consenting; the Surrogate's approval ends the office and revokes the letters, and the sureties stay on the hook until a final judgment on a final account unless everyone waives it in writing.

   What the rule says 3 sources

   “If all parties interested in any separable part of an account, such as income, are of full age and competent, and so agree in writing, there need be no accounting as to the same.”

   R. 4:87-9 · as code

   “A personal representative for an estate who is unwilling or unable to perform the duties and powers of the office may file for voluntary discharge with the Surrogate’s Court of the county that granted the personal representative’s letters.”

   R. 4:80-1(e) · as code

   “A personal representative shall be discharged from the further performance of the duties and powers of the office, and the personal representative’s letters revoked, upon the approval by the Surrogate’s Court of the personal representative’s voluntary discharge filing.”

   R. 4:80-1(e) · as code