Notice of probate from a litigator’s perspective

Posted by: Pierson W. Backes | Posted on: December 1st, 2011 | 0 Comments

Many of the estate administrations we handle come to us midstream.  Many people, when they learn they’re named as executor in a Will, begin the probate process without counsel;  I have a lot of respect for people who try to minimize the costs to the Estate by doing the work themselves, and maybe even more for those who know when they’ve done all they can do and need the assistance of a lawyer.

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.

Probate Litigator