Probate Reader
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.
—-
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.
The time to investigate whether or nor to challenge a Will: before it’s too late
Posted by: Pierson W. Backes | Posted on: December 1st, 2011 | 0 Comments
I’ve written here about how little time a litigant has to challenge the probate of a Will in New Jersey. Under Rule 4:50-1, in almost all circumstances, an action to set aside the probate must be brought within 4 months of the Will being admitted to probate, or within 6 months if the plaintiff doesn’t reside in New Jersey.
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.
A Common Sense Disclaimer:
Don’t construe anything you read on this blog as legal advice.
Don’t act or refrain from acting because you read something on the blog without first seeking legal advice from an attorney licensed in your state.
Don’t believe that this blog makes anyone at Backes & Backes your lawyer. The blog does not create an attorney-client relationship between us. If you have, or suspect that you may have a legal problem, you should consult a lawyer to obtain legal information and recommendations specific to your problem.
Don’t think that we warrant the accuracy or completeness of the information in the blog, because we expressly disclaim all liability relating to, arising out of or in any way involving the contents of the blog.
Don’t think that Backes & Backes is responsible for links to other websites you find here because these these links are there just as a convenience.
Don’t think that any opinions expressed here are those of every attorney at Backes & Backes because they are not.
Do feel free to reproduce the material here for non-commercial purposes as long as you give proper attribution.
Do contact me if you have any questions about these guidelines or the blog.