Now, it’s almost always the case that an unrepresented personal representative won’t have done things quite as we would have, and probably the most common oversight is the notice of probate.  In New Jersey, Rule 4:80-6 requires that a personal representative send all beneficiaries and other parties in interest (spouse, heirs, next of kin) written notice that the Will was probated, including the date and place of probate, and stating that a copy of the Will will be provided to them upon request.  Proof of mailing has to be provided to the Surrogate within ten days after the notice is sent.

More often than not, when I ask a new client who’s serving as personal representative about the notice of probate, the client explains that all the beneficiaries know about the Will already.  From a practical point of view, this makes excellent sense;  why send formal notice to someone of a fact they already know?  From my point of view as an estate litigator, this misses one of the primary functions of the notice of probate.  The case In the Matter of Fanny Green, Deceased is one of the things I’m thinking of when we prepare a notice of probate.

Notice of probate protects the Estate and the personal representative from later Estate litigation.  Until the notice of probate requirements are met, we cannot have confidence that the probate won’t be challenged down the road.  The Fanny Green case makes clear that, even when a beneficiary or party in interest has actual knowledge of the probate, the personal representative is not relieved of their responsibility to give notice of probate, and a Will challenge can be brought long after it would ordinarily be barred.  Notice of probate isn’t merely a nice thing to do;  it’s an important part of the personal representative’s duty, and it’s a perilous thing to ignore.

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Sidenote:  as common as it is for the notice of probate to be overlooked, it is even more common for the proof of mailing requirement to be forgotten.  Happily, the case law makes it fairly unlikely that the mere failure to file the proof of mailing will leave the Estate vulnerable.  Which is not to say it should be ignored.

In civil litigation, it’s not at all uncommon to discover facts that support a claim you didn’t know about when the case was filed. Pleadings are routinely amended to include new claims, and while I’ve never actually seen it happen, there are circumstances where the Rules of Court allow a party to add a new theory or claim even after all evidence has been presented to the judge or jury.

A colleague asked me recently whether facts discovered in the course of litigation could allow for a Will challenge even after the 4-month period had run. (This was, I’m embarrassed to report, pretty much idle chat. Her actual case involves a decedent’s estate, but there’s no question as to whether or not probate is going to be challenged.)

I’ve never litigated the issue, and I was curious enough to spend a little time scratching around, I cannot find a single case where newly discovered facts were sufficient to allow a litigant to challenge probate after the period set out in the Rule. In fact, the few reported cases that touch on the question fall squarely against an expansion of time for newly discovered evidence. Where a plaintiff has alleged that the facts supporting a claim of undue influence, waste, or lack of testamentary capacity were only discovered after the time to challenge probate had run, the action to set aside probate was barred nonetheless.

The message for the practitioner is clear: if there is any hint that a probate challenge might be appropriate, the matter requires speedy investigation and timely filing.

In estate litigation, there’s rarely reason to delay, and often every reason to act quickly. Once probate has been granted, assets can be liquidated, property transferred, and all manner of action can be taken that can’t easily be undone.

It’s one thing to say that it’s generally prudent to act quickly to challenge the probate of a Will. In New Jersey, it’s not merely prudent, it’s required. The statute of limitations for the challenge of probate is one of the shortest in New Jersey law: the action must be commenced within four months after the Will is admitted to probate (or 6 months if the person bringing the action lives out-of-state).

This is an extraordinarily short limitation; typically, the statute of limitations for an action is no shorter than two years. And casual research will not reveal the 4-month limitation; there is no “statute of limitations” for these actions described in the New Jersey statutes.

The limitation is in the R. 4:85-1 of the Rules of Court. It’s well-settled that the four-month limitation described in the Rule operates as a statute of limitations; see, e.g., Marte v. Oliveras, 378 N.J. Super. 261 (App. Div. 2005). The limitation is relaxed to allow an additional 30 days on a showing of good cause under R. 4:85-2, and in certain circumstances can be relaxed further by the court, but if you want to challenge probate as of right, you have four months only to do so.

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One of the reasons this rule comes to mind is that I was speaking with fellow estate lawyer last week and she said that, in her experience, many families aren’t ready to move from the emotional loss of a loved one to the business of handling an estate for 7 months. I’m not sure I’ve given enough thought to the question to say, but it’s certainly true that some families take longer than others to think about the business of handling estate matters. Four months is not long, but that’s all the rules afford.

To my knowledge, there are no reported cases directly concerning ancillary probate;  I assume that this reflects both how relatively uncommon it is and also how relatively straight-forward.   The procedure is of course available and might be desirable in some instances even when only real property is in New Jersey.  (If, for instance, the decedent owned real property in several counties in New Jersey, recording the Will in each county may be more trouble than simply probating the Will in one.)  The governing rule is N.J.S.A. 3B:3-26, which says simply:

When the will of any individual not resident in this State at his death shall have been admitted to probate in any state of the United States or other jurisdiction or country, the surrogate’s court of any county may admit it to probate for any purpose and issue letters thereon, provided the will is valid under the laws of this State.

The application, then, is made to Surrogate;  narrowly speaking, the Superior Court has jurisdiction as well and the application could begin there, but unless the Estate is contested in the jurisdiction of domicile there is no reason I can think of to begin in the Superior Court.  In practice, the personal representative produces an exemplified copy of the Will and proof of the out-of-state probate.  The exemplified copy of the Will must be produced for obvious reasons, and the record of the out-of-state probate must be produced because you can’t have ancillary probate in New Jersey if you don’t have original probate somewhere else.   In most other respects, the procedure essentially follows ordinary probate in New Jersey.

I feel obliged to give my tax warning whenever I’m talking about an out-of-state Estate.  New Jersey’s inheritance tax, if due, must be paid within 8 months of the decedent’s death.  In addition, the personal representative should be aware that New Jersey’s Estimated Gross Income Tax requirements can be onerous.

There’s no reported case I’m aware of allowing the probate of an unsigned Will, though it’s rumored to have occurred.  The Will would come in under N.J.S.A. 3B:3-3, which is something like a saving provision allowing a Will to be admitted even if it does not meet the requirements for a formal Will (N.J.S.A. 3B:3-1) or a holographic Will (N.J.S.A. 3B:3-2).  This statute allows for the probate of a document not otherwise qualifying as Will if the proponent can show by clear and convincing evidence that the decedent intended the document to be a Will.

This rule has been fairly liberally applied, in the interest of equity, and particularly in uncontested matters it can help avoid manifest waste or the thwarting of the decedent’s wishes.   It remains to be seen whether the rule is so broad that it will allow the probate of a document, prepared by someone other than the decedent, that the decedent never signed.

A recent appellate division decision, IMO Louis Macool, Deceased (416 N.J. Super. 298, App.Div. 2010), seems to suggest that an unsigned Will could in fact be admitted to probate.  The facts in Macool aren’t uncommon by any means, except for the moment of the decedent’s death.  Ms. Macool met with her lawyer to change her Will, and the attorney thereafter prepared a “rough” draft of the Will, following Ms. Macool’s central instructions and modifying a few small items.   Before the draft could be reviewed, Ms. Macool died.

The draft Will in Macool was not admitted to probate.  What’s particularly interesting to me are the reasons the draft was rejected.  First, the decedent had never seen the Will.  In addition, the Will contained some terms that she had never discussed with her attorney, and modified some of the terms she directed. The holding makes no mention of a signature requirement:

“We hold that for a writing to be admitted into probate as a will under N.J.S.A. 3B:3-3, the proponent of the writing intended to constitute such a will must prove, by clear and convincing evidence, that: (1) the decedent actually reviewed the document in question; and (2) thereafter gave his or her final assent to it.”

This has pretty significant implications for the practitioner, I think.  While it’s not our practice to have final estate planning documents reviewed before signing, there are times when circumstances almost require it.  If complex documents need to be reviewed in the evening when witnesses are unavailable, for instance, we may go over the documents, obtain “final assent,” and schedule a short follow-up for the actual signing of the instruments.  I suspect that many lawyers send draft copies of Wills to clients for review before meeting.  If the client sends back a message saying that the Will is just right, it seem likely that it would be accepted for probate.

The typical case calling for temporary restraints is where a plaintiff is filing an action but wants to keep the other party from causing further harm during the time between the filing of the action and first court date. Without temporary restraints, the opposing party has (at least) the time between the filing of the complaint and court date and may continue whatever conduct it is that caused the suit. Temporary restraints sought in estate litigation generally seek to preserve the status quo, essentially to put everything in amber. These temporary restraints are often continued after the initial court date until the case can be fully heard.

It’s my experience that courts of equity are generally sympathetic to preserving the status quo, which makes good sense to me. While a chancery court is empowered to do equity and is given broad discretion to do so, the actual articulated standard actually sets the bar quite high. If a party, for whatever reason, opposes a request for an order preserving the status quo, the standard can be difficult to meet.

The rule governing temporary restraints in New Jersey – R. 4:52-1 – allows for an application for temporary restraints without notice to the other parties, or with notice. The rule seems to suggest that the standard shifts depending on whether or not the application is without notice to the adverse party: a party is not entitled to “any temporary restraints [ . . . ] unless the defendant has either been given notice of the application or consents thereto or it appears [. . . ] that immediate and irreparable damage will probably result to the plaintiff before notice can be served.” While the standard of irreparable damages is applied by rule only to ex parte proceedings, the case law carries this standard through all applications for temporary restraints.

The leading case articulating the standard relative to temporary restraints is a 1982 New Jersey Supreme Court case called Crowe v. De Gioia. The test actually set forth in Crowe is 3-pronged: a litigant must show that there is a risk of irreparable harm, that the law underlying the complaint is well-settled, and that the litigant is likely to succeed on the merits.  Subsequent cases have read the Crowe test to also require a balancing of the relative weight of the harm posed if the relief is denied against the burden on the adverse party if the relief is granted, and additionally that the relief requested is not adverse to public policy.

Notwithstanding customary practice, applications seeking to preserve the status quo – as opposed to ones seeking more extraordinary relief – are not given a lot of special deference under the Crowe standard. (The only prong of the test where the preservation of the status quo is specifically addressed in Crowe is the likelihood of ultimate success on the merits.)

The greatest difficulty is typically meeting the test for irreparable harm. Any injury that can be addressed by monetary damages is not considered irreparable. In estate litigation, we are often seeking to stop a party from raiding the decedent’s assets. Worse, we often know that a judgment for monetary damages will be an empty victory, where the damages will be difficult or impossible to collect.  Preparing to articulate irreparable damages is a significant part of preparing any application for temporary restraints, and even where the plaintiff seeks “only” to preserve the status quo, counsel should be prepared to answer each prong of the Crowe standard, including irreparable damages.

What happens if I die without a Will? When I’m asked that question, there’s one group of people who will almost always call for appointment the following day. Married couples, or domestic partners in New Jersey, with no children and living parents, are very often shocked to discover that the parents will inherit if one of them dies without a Will.

Pennsylvania nearly divides the Estate equally between the surviving spouse and the parent or parents of the decedent. The spouse receives the first $30,000.00 plus one-half of the balance of the Estate, and the rest passes to the parents. If most of the couple’s worth ends up in the Estate of the deceased spouse, the survivor may be left with a considerable financial hardship.

New Jersey is more measured but does not exclude the parents entirely. The surviving spouse or domestic partner receives the first 25% (subject to certain minimum and maximum amounts) and then 75% of the balance of the Estate. So, for instance, if the total Estate assets are $250,000.00, the surviving spouse or domestic partner receives $62,500 as the first 25%, and then $140,625.00 as 75% of the balance. The parents of the decedent receive the remaining $46,875.00

Measured just by the reaction of my clients, neither scheme is what most couples intend. And when the newly motivated couple does come in to have a Will prepared, it’s quite uncommon for them to leave any part of their Estate to their parents.

We are a few miles from the Delaware river separating New Jersey and Pennsylvania, and of course the answer to the question depends on which side of the river you happen to live on. I think it’s fair to say that the rules of intestate succession represent each State’s best guess as to what most people would want if they had left a Will. Pennsylvania and New Jersey guess differently, and one area seems especially critical in my practice.

While there really is no “typical” family as far as I can tell, I am thinking about the married couple who have children together and no children by anyone except their spouse. If one spouse dies, and leaves no Will, what happens?

In New Jersey, the surviving spouse (or domestic partner) inherits 100% of the Estate. The children receive nothing. In Pennsylvania, the surviving spouse receives the first $30,000.00 and 50% of the balance of the Estate, and the remainder goes to the children.

In mind of the fact that younger couples are even less likely than older ones to make a Will, this distinction can have a dramatic impact on the lives of the survivors.

In New Jersey, ancillary administration can often be avoided through the simpler process of recording the decedent’s Will. An executor or administrator of an out-of-state decedent’s Estate can avoid ancillary probate by recording the Will when:

• The only property in New Jersey that’s affected is real estate.
• The decedent left a Will, and the Will has been admitted to probate in another state.
• The Will probated out-of-state meets the requirements for a valid Will in New Jersey.

Figuring out the best approach in any particular Estate is pretty fact-sensitive; the legislative scheme is a garden of forking paths and there are alternative approaches if any of the items I’ve listed here aren’t satisfied. In broad stroke, though, these are the requirements, and they’re often easily met. Once a Will has been properly filed, the New Jersey real estate can be transferred or sold as easily as if a full administration had been undertaken.

It’s worth noting that, when I’m contacted about handling ancillary administration in New Jersey, more often than not the only Estate property in New Jersey is real estate. (Sidenote: the whole question of ancillary administration for the handling of real property can be avoided in life through estate planning, and it may be advisable to do address the problem presented out-of-state property in the estate planning process.)

The two conditions that must be met — that there’s an out-of-state probate and that the Will would be valid in New Jersey — are rarely a stumbling block. I don’t think I’ve ever encountered an Estate where the decedent managed to completely avoid probate in their home state but left Estate property in New Jersey. The question of what constitutes a valid Will in New Jersey is something I’ll be writing about soon, there’s been some interesting cases recently, but the short answer is that, if a Will is valid anywhere, it’s likely valid in New Jersey.

The mechanics of recording a Will are considerably simpler than a full ancillary administration, and can be handled entirely in the Surrogate’s office without application to the court in most instances.

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Last word is a couple of a tax warnings. First, New Jersey will impose an inheritance tax of up to nearly 16% on the value of the property if the proceeds pass to (almost) anyone other than a spouse, parent, or child of the decedent, and that tax must be paid within 8 months of the decedent’s death. In addition, on the sale of the real estate, New Jersey will require the payment of an Estimated Gross Income Tax at closing; the amount is calculated by formula but in any event is no less than 2% of the gross sale price. This probably merits its own discussion another day.