Under the New Jersey Court Rules, individuals have a limited opportunity to challenge a will. With certain exceptions, unless a caveat is filed within 10 days of the deceased person's date of death, a person seeking to contest a will has only 4 months after probate of the will (6 months for persons residing outside of New Jersey).
A will may not be filed for probate until ten days have elapsed since the death of the deceased person. N.J.S.A. 3B:3-22. During this time, a challenge to the will may be filed, which is called a “caveat”. The filing of a caveat will divert the probate of a will in the ordinary course by causing the transfer of the probate proceedings from the Surrogate’s Court to the Superior Court, Chancery Division, Probate Part in the relevant county. R. 4:82. Given the shortness of the ten day period, however, the filing of a caveat is often not an option for a person interested in challenging a will unless that person has already consulted a probate lawyer.
Furthermore, unless there is a known controversy regarding a deceased person’s will prior to their death, a beneficiary or potential will contestant is unlikely to realize they have a reason to consult with probate lawyers or file a caveat until a will is submitted for probate. The Court Rules only require that notice of probate be mailed to beneficiaries and next of kin within 60 days after the date of the probate of a will. R. 4:80-6. Moreover, the Rules do not require that a copy of the will be provided by the executor or executrix with the notice. The executor or executrix need only indicate that they will provide a copy of the will upon request.
As a result, the more likely course of action is the filing of a complaint asserting a challenge after the will has already been probated by the Surrogate’s Court. While there are certain exceptions to the rule, generally speaking, a person seeking to contest a will has only four months after probate of the will, or if the person resides out of state, six months, to file a complaint alleging the invalidity of the probated will. R. 4:85-1. Particularly when 60 days of this period may elapse even if an executor or executrix provides timely notice under the rules, a person wishing to challenge a will after it has been probated must act quickly to avoid having their claims being barred by time. It should be noted that this time restriction does not apply to complaints challenging the administration of an estate or to a challenge to succession when there is no will (also known as intestate succession). For example, if you are a beneficiary under a will and believe the executor of the estate failed to give you property or money to which you are entitled under the will, you may be able to file a complaint seeking relief outside of the four to six month time period.
The situation can become problematic when a will has been probated and the person wishing to contest the will is not entitled to notice because they are not identified as a beneficiary under the probated will, or as a spouse or the next of kin. In this situation, the potential will contestant may not receive notice from the executor within 60 days of the will being probated. In order to timely initiate a will contest in this circumstance, the potential will contestant likely must rely on other sources of information regarding the administration of the deceased person’s estate. And while a person believing themselves to be a proper beneficiary of the deceased person may well be aware of the deceased person’s death, without knowledge of the short time frame they have to assert a challenge to the probated will, the time to do so can easily slip away. Unless a dispute over the estate is anticipated prior to the death, the person who wishes to pursue a will contest most likely will not have consulted a probate lawyer and learned about the time frame.
The probate lawyers of the Law Office of Bart J. Klein, located in Maplewood, New Jersey, counsel clients regarding disputes over estates throughout New Jersey. We welcome you to contact us for further information.
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