How late can the probate of a Will be challenged?

Posted by: Pierson W. Backes | Posted on: June 5th, 2011 | 0 Comments

“In delay there lies no plenty.”

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.

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.

Probate Litigator