WILL CONTESTS, FILING CAVEATS, AND NOTICE OF PROBATE

While most people are aware that Wills can be contested, few realize how short the deadlines are to properly file a Will contest.

In New Jersey, a Will contestant who lives in the state must file court papers seeking to overturn a Will within four months of the date that the Will is probated. “Probate” in New Jersey means that the proposed executor files the original Will and an original death certificate with the County Surrogate’s office and signs other documents which request that the Surrogate grant the appointment as executor. Those Will contestants who live outside New Jersey have 6 months from the date of probate to file a Will contest.

For those who know or suspect that they have grounds to contest a Will, the best strategy is to file a document called a “caveat” before the Will is probated. New Jersey law provides that Wills cannot be probated until at least 10 days have passed from the date of the decedent’s death; therefore, any caveat that is properly filed within those first 10 days blocks the probate of the Will and forces the proposed executor of the Will to file court papers seeking to set aside the caveat.

While filing a caveat gives the Will contesting party an early procedural advantage in court, it only works if that party knows that the Will does not benefit such party. And, if the Will has not yet been probated and a copy provided to that party, it is less likely that the Will contestant would know about the Will and its contents.

So, when must an executor inform family members about the Will?

New Jersey probate court rules require that the executor, within 60 days of the date of the Will’s probate, provide the next of kin of the decedent and all named beneficiaries under the Will with a notice in writing that the Will has been probated, the name and address of the executor, and that a copy of the Will “shall be furnished upon request.”

Interestingly, the court rules do not require the executor to send a copy of the Will with the “notice of probate letter”. If the executor does not provide notice of probate, a Will contestant may receive extra time to file a Will contest. This is one of the reasons that the Timothy Rice Estate and Elder Law Firm always makes sure that our executor clients provide timely notice of probate.

In the next blog, we will discuss the most successful legal grounds to contest a will. Stay tuned.