New Jersey Probate Litigation Lawyer & Attorney : Cohn Lifland Pearlman Hermann & Knopf Law Firm : Last Will & Testament, Contested Estates

No one should confuse the circus that is happening in Florida in the probate matter involving Anna Nicole Smith as a normal proceeding.  True the matter is being heard in a probate court.  But that virtually ends the similarity to the customary probate hearing.  The matter involves the unfortunate death of a young woman who was a celebrity who actively sought controversy during her life.  That controversy involved her marriage to a much older man  who was worth millions, a celebrated court proceeding that went all the way up to the United States Supreme Court, posing in men's magazines or just posing in general for the paparazzi, the extensive use of drugs in her family and the birth of a baby with suspected parentage.  When you add to that cocktail a judge who obviously has little or no control over his courtroom ,disaster  will happen. 

Probate proceedings are generally conducted in the privacy of a courtroom without any cameras or press present.  The proceedings are dignified and are not paraded in front of the evening news and scandal sheets.

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Actions to settle up an estate and receive approval for the manner in which the estate has been administered and divided are accounting actions. Rule 4:87 provides the rules for such an action and will be discussed in greater detail in later comments.  Generally they are filed in the same manner as a contested action and must follow a prescribed form.  Each account shall have annexed to it a detailed listing of the financial history again in a prescribed form. (Rule 4:87 to 4:87-9)  By agreement, the parties may agree not to provide an accounting although if there is any question it is much safer to provide the information.  If commissions are sought, the applicant must provide a detailed statement of all services performed as well as a disclosure of all commissions already received.  Where attorneys fees are sought detailed applications must also be provided. (Rule 4:88-1 to 4:88-4)

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Rule 4:83 provides that all action within the Probate Part of the Chancery Division shall be brought pursuant to Rule 4:67 in a summary manner by the filing of a complaint and issuance of an order to show cause.  The Surrogate may fix the return date of the order to show cause before the Chancery Judge with service of the papers being made in conformity of the rule (Rule 4:83-1)

The papers shall be titled "In the Matter of the Estate of_____, Deceased" (Rule 4:83-3) and filed in the same county where the appropriate Surrogate is located.  Furthermore, all complaints must be verified (signed under oath that the allegations are true).

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Unless authorized by the Superior Court, the Surrogates Court cannot act in any matter in which:

• a caveat has been filed with the court before entry of judgment;
• a doubt arises on the face of the will or it has been lost or destroyed;
• a holographic will is presented for probate as defined by statute;
• letters are sought for limited or temporary administration;
• a dispute arises within the Surrogates Court; or
• the Surrogate certifies the case to be of doubt or difficult.

In the above instances the matter shall proceed in the Superior Court, Chancery Division. (Rule 4:82)

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After a will has been probated the person so appointed shall mail to all beneficiaries and to all persons designated by Rule 4:80-1(a)(3) a notice 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 of that notice shall be filed with the Surrogate within 10 days of the notice.  If the names and addresses are not known or cannot be reasonably determined then a notice of the probate shall be published in a newspaper in the county identifying those persons having a possible interest in the estate.  If a charity is involved a copy of the will shall also be mailed to the Attorney General. (Rule 4:80-6)

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Every last will and Testament will have a person(s) appointed to administer the estate.  That person is called an executor or executrix if the deceased died estate (with a will) or administrator (if the deceased died without a will).  In those cases where no person is so named (intestacy or failure to name an executor or an application for substitute executor or administrator) the applicant must comply with Rule 4:80-3.  This Rule provides that the applicant must provide the court with the renunciation of all persons whose right to be the executor etc. is superior or equal to that of the applicant.  That renunciation must be under oath prepared in front of an appropriate person authorized to acknowledge deeds and the document must also request that the applicant receive the appropriate letters.

Notice must be given to all interested parties as prescribed by the rules or by certified or registered mail.  If there are no known next of kin in New Jersey, the person applying for letters must give at least 20 days notice to the Attorney General.  Generally in a case where there is a contest for letters of administration ,a preference is given to a resident of New Jersey. (R. 4:80-5)

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All actions filed in the courts in New Jersey are controlled procedurally by The Rules Governing the Courts of the State of New Jersey.  These rules are promulgated by the Supreme Court of New Jersey and are semi-annually updated as the need arises.  Rules 4:80 through 4:96 control probate actions.

Filing for Probate of Will

Rule 4:80 controls the simple filing for probate of a will.  This is essentially a clerical function.  The will is presented to the surrogate's court with the following information:

• Applicant's residence;
• Name and date of death of decedent, his domicile at date of death and date of the will;
• Names and addresses of the spouse, heirs, next of kin and other persons, if any, entitled to letters and their relationship to the decedent;
• Ages of any minor heirs or minor next of kin and whether the decedent had any children living when the will was made or any children born after the execution of the will.

Death certificates must be supplied when probate is sought and in those cases where a bond is required a surety bond must be presented along with an affidavit as to the value of the estate.  The application is made to the court in the county where the decedent was domiciled at the time of death or if not domiciled in New Jersey at the time of death, in the county where the decedent had property.

Rule 4:81 sets forth the procedure to be followed when the will is not self proving (the testator and witnesses have signed the will in front of a person authorized to administer oaths in New Jersey) and the witnesses are out of state or have predeceased the probate of the will.

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There are probably as many reasons for contesting the probate of a will as there are contested actions.  The usual trigger is often anger at the terms of the will, being left out of an estate plan, a new will that is signed just before death with unexpected terms, etc.

When a deceased executes a new will while under some type of disability and either cuts out of the will persons who had previously been beneficiaries or leaves disproportionate sums to persons who suddenly appear out of nowhere to receive a large inheritance, then radar will go off and a contested claim may be considered.  Not all of this type of estate plan changes mean that wrongdoing has occurred.  Rather this type of conduct is the alarm that will awaken prospective heirs or others interested in the estate to investigate the facts surrounding the execution of the will.

In later comments, I will discuss the necessary mental capacity of a person to execute a last will and testament.  In a nutshell, the testator does not have to be in total control 24/7 to properly execute a will.  There must be no undue influence which impacts on the decisions of the testator and of course the will must be properly executed according to statute.

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Probate courts will sometimes have to take a back seat to family law courts and the rules and the precedents of those courts when the deceased dies while still involved in a divorce or other family law action.  In Kingsdorf v. Kingsdorf, 351 N.J. Super 144 (App. Div. 2002) Mr. Kingsdorf was a party to a divorce action which he settled.  One of the terms of the settlement was to compel his ex wife to transfer property to his estate on his death.  Unfortunately, he died before the divorce was granted to his wife, which divorce incorporated the terms of the property settlement agreement into the final judgment.  It appears that Mrs. Kingsdorf did not know of her ex-husband's death at the time of the divorce. (This was a real dysfunctional family.) 

Sometime after his death, Mr. Kingsdorf's son brought an action on behalf of his father's estate to compel the transfer of the property pursuant to the property settlement agreement in the divorce case.  In reviewing the application, the appellate court found that since the husband had died before the divorce, the court held that the power to distribute was a power the court only held incident to a divorce.  Since the husband was dead at the time of the hearing, no divorce should have been granted and therefore the judgment for divorce with property settlement attached could not be enforced.  In discussing the relationship between Family Court and Probate Court, the Appellate Court found that any new action to enforce the terms of the agreement could be filed in the probate court (Chancery Division) as jurisdiction in the Family Court was lost on the husband's death.

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When a person is incapacitated, may a court-appointed guardian change the residency and domicile location for the incapacitated from one jurisdiction to another?  This precise issue has been discussed in New Jersey in the case of Matter of Marguerite Seyse, 353 N.J. Super 580 (App.Div. 2002).  In that family squabble, two sisters were appointed co-guardians for their incapacitated mother.  The two sisters hated each other and agreed on very little with respect to their mother's guardianship, which had been established in New Jersey.  One night, without court approval, or even knowledge of the other sister, the incapacitated mother was moved from New Jersey to a home in Connecticut.  The court, after a hearing, found that the move to Connecticut was actually in the best interests of the mother.  It dissolved the co-guardianship and made the Connecticut sister the sole guardian of her mother while leaving the New Jersey sister as guardian of her mother's property.  After the mother died, a contest ensued to determine whether New Jersey or Connecticut was the appropriate domicile for the deceased.  The probate court found that the guardian had the ability to choose the domicile of her incapacitated mother and therefore Connecticut was chosen as the proper forum for the probate of the mother's estate.

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