Responding to an Order to Show Cause in Probate
You have received an order to show cause signed by a New Jersey probate judge or general equity judge. What should you do? This post aims to answer that question.
What Is An Order to Show Cause and Why Did I Receive It?
An "order to show cause" is a document signed by a superior court judge. The order to show cause requires a person or entity to appear in court and convince the judge who signed it not to grant the request of the person or entity, called "the plaintiff", who had the judge sign the order to show cause. The reason you received the order to show cause is that the plaintiff is asking the court to decide something that affects your interests, requires you to do something or requires you not to do something. New Jersey’s Rules of Court require the plaintiff to notify you that the judge has signed the order to show cause.
Why Is An Order to Show Cause Filed in Probate Part?
New Jersey Court Rule 4:83-1 dictates that all actions in the Superior Court, Chancery Division, Probate Part, be brought in a summary manner by filing of a complaint and an order to show cause pursuant to Rule 4:67. As a result, many actions in the Probate Part begin by the filing of an order to show cause, which must be served on any defendants and parties that have an interest in the matters being raised with the court.
A person or entity may decide to file a complaint and order to show cause in probate part for a variety of reasons, for example:
- To remove an executor, trustee, personal representative or fiduciary.
- To require an executor, trustee, personal representative or fiduciary to produce an accounting of estate or trust administration.
- To appoint an executor, trustee, personal representative or fiduciary.
- To declare a will invalid (also known as a will contest or challenging a will).
- To force or stop the distribution of assets from an estate or trust.
If you have received an order to show cause, the document should say exactly what the person who filed it is asking the court to do.
What Does the Probate Part Order to Show Cause Require Me to Do?
The order to show cause typically orders that you file papers with the court responding to the plaintiff’s complaint and/or brief and appear in court for a hearing. The papers filed with the court should include a sworn statement from you, the defendant, and may include other documents proving your position. The court may or may not hear testimony at the hearing.
Sometimes the order to show cause also orders immediate temporary relief, often referred to as "temporary restraints", which have been requested by the plaintiff and granted by the court ex parte, meaning without notice to you. The granting of temporary restraints is generally not allowed “unless the defendant has either been given notice of the action or consents thereto or it appears from the specific facts shown by affidavit or verified complaint that immediate and irreparable damage will result to the plaintiff before notice can be served or informally given.” R. 4:67-2(a).
What Happens If I Don’t Respond to the Probate Part Order to Show Cause
If you do not file papers responding to the order to show cause, the judge is likely to grant the request or requests made by the plaintiff. By not filing papers in advance of the hearing date, you may risk losing your opportunity to be heard even if you show up in court on the hearing date.
Every case is different and you should consult with an attorney about your unique case if you have received an order to show cause. Nonetheless, it is almost never advisable not to respond to an order to show cause. The best course of action is often hiring an attorney to prepare and file with the court a verified answer, which is a sworn statement, that attaches documents supporting your position, along with a legal brief explaining the legal and factual reasons why the judge should rule in your favor. These documents should be filed before the deadlines set forth in the order to show cause so that the court and the plaintiff are aware you are opposing the plaintiff’s request. Your attorney can then find out whether the court will be hearing testimony on the hearing date for the order to show cause, referred to as “the return date”, and can appear with you in court if necessary.
New Jersey Probate Lawyers
The probate lawyers at the Law Office of Bart J. Klein, located in Maplewood, New Jersey, counsel clients regarding estate disputes and probate disputes, including will contests and challenges to the administration of estates. We appear in courts throughout New Jersey and welcome you to contact us for further information.
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