What is “Notice of Probate” anyway?

Posted by: Pierson W. Backes | Posted on: February 4th, 2013 | 0 Comments

When representing a personal representative in my probate practice, it not unusual for my client to scoff at the idea of making a formal notice of probate.

Take a common situation in which the two children of the decedent are the sole heirs, and one of the children is the executor.  If the sibling heirs are personally close, a formal notice of probate might seem silly.  Sending the formal notice described in the court rule might even be irritating to the brother or sister;  if they’ve read the Will and know that it was probated, the notice of probate they’ll receive will contain less information than they already know.

Now, within the context of my representation, the issue is easy enough to resolve.  Notice of probate is simply part of the administration, and when it’s handled by the law firm it’s rarely questioned by the recipient.

A more interesting circumstance is where we get involved late in an administration where no formal notice of probate was delivered, or where we represent an heir who has not received a formal notice of probate.  The question then is whether whatever notice the heir or next-of-kin received was sufficient.

Rule 4:80-6 describes what must be in a notice of probate.  All beneficiaries and next-of-kin (in general terms) are to receive “a notice in writing that the will has been probated, the place and date of probate, the name and address of the personal representative and a statement that a copy of the will shall be furnished upon request.”

It is clear that mere knowledge of the existence of a Will and the identity of the executor named in the Will is not enough to constitute notice of probate.  In re Estate of Green, 421 A.2d 600 (App.Div. 1980).   It’s likewise clear that a technical defect separate from the contents of the notice itself – such as failure to file proof of notice with Surrogate – does not make the notice insufficient.

There is some authority to support the position that actual knowledge of the facts that should be contained in the notice is like sufficient, even where there is noncompliance with the literal requirement of written notice.  Seee.g. In re Will of Landow 199 A.2d 43 (App.Div. 1964).

But far better to actually comply with the rule, even when all of the facts contained in the notice are already known to the recipient.

Probate Litigator