New Jersey Probate & Estate Litigation: Funeral, Burial, and Disinterment Disputes

In addition to the traditional will contest, estate litigation includes, among numerous other potential claims, claims related to funeral arrangements, burial, and disinterment. Most disputes in this regard must be resolved by determining the authorized person to make such decisions.

Sadly, estate litigation may first manifest itself in disputes regarding funeral arrangements and the burial of a loved one. The right to control funerals and disposition of a loved one’s remains is set forth by statute. Pursuant to statute, a testator/testatrix may appoint a person in his or her Will to control his or her funeral and disposition of human remains. It is not necessary that the appointed funeral representative be the executor/executrix of the Will, and the designated representative may act prior to the Will being admitted to probate. In the event that the decedent died intestate (without a Will) the right to control the funeral and disposition, unless otherwise ordered by the Court, is set forth by statute in the following priority:

1.      Surviving spouse (unless an active restraining order exists or an intentional killing of the decedent by the surviving spouse has occurred);

2.      Majority of surviving adult children;

3.      Surviving parent(s);

4.      Majority of siblings;

5.      Other next of kin according to degree of consanguinity; and

6.      If no known relative, any representative providing written authorization.

With respect to the disinterment of human remains in New Jersey, a separate statute controls. In litigation involving disinterment of a loved one, the Judge may consider the decedent’s wishes, however expressed. In recent disputes regarding disinterment, the New Jersey Supreme Court has noted several key differences between disinterment and interment rights – as opposed to interment, disinterment is strongly disfavored, and the shared authority to disinter is provided, with joint written authorization required, to the surviving spouse, any adult children, and the owner of the interment space. As clearly set forth in the relevant statutes, and as highlighted in recent reported decisions, a surviving spouse’s primary authority to make an interment decision is reduced to authority shared with all surviving adult children of the decedent.

Because estate and trust administration and litigation requires specialized knowledge, you may wish to consult with an experienced attorney if you are either a fiduciary or beneficiary of an estate or trust. Specifically, you may wish to contact an attorney if you have questions regarding the funeral, burial, or disinterment of a loved one, the probate process, administration of an estate or trust, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq., 2018, all rights reserved

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New Jersey Probate & Estate Litigation: Appointment of Estate Administrator

An administrator of an estate – be it a general administrator, administrator with the Will annexed, substitutionary administrator, administrator ad prosequendum, administrator pendente lite, temporary administrator, or other form – is an officer of the Court, and may secure his or her letters of administration only through appointment by the Surrogate or Superior Court.
Pursuant to the New Jersey Probate Code, when an individual passes away intestate:

Administration of the intestate’s estate shall be granted to the surviving spouse or domestic partner of the intestate, if he or she will accept administration, and, if not, or if there be no surviving spouse or domestic partner, then to the remaining heirs of the intestate, or some of them, if they or any of them will accept the administration, and, if none of them will accept the administration, then to any other person as will accept the administration.

If an application for letters of administration is made by the person first entitled thereto, no renunciation or notice is required by the Rules of Court. Where application for letters is made by a person other than one who alone has the right to letters, the applicant must produce either executed Renunciation for Administration documents, signed by any competent adult person whose right to the letters is prior or equal to that of the applicant, or proof that all such persons who have not renounced have received notice of the application. Where Renunciations have not been secured, the Surrogate’s Court may also require notice to interested parties other than those entitled to letters. In the event that the applicant indicates that there are no known next of kin, or he or she has no knowledge as to the existence of next of kin, the applicant is required to file proof that proper notice was provided to the Office of the Attorney General. It is important to note that failure to give the required notice may result in reopening of the judgment granting letters of administration.

In certain instances, such as where persons entitled to notice cannot be located, application for letters of administration must be made to the Superior Court, Chancery Division – Probate Part by way of Verified Complaint upon Order to Show Cause. In such instances, it is important to consult with an experienced probate attorney.

Because estate planning, administration, and litigation require specialized knowledge, you may wish to consult with an experienced attorney if you are planning your estate, or the fiduciary or beneficiary of an estate or trust. Specifically, you may wish to contact an attorney if you have questions regarding the probate process, administration of an estate or trust, fiduciary obligations, preparation of a formal or informal accounting, challenges to a Will, contests and caveats, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq., 2018, all rights reserved

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New Jersey Probate & Estate Law: What is Probate?

“Probate” is the legal process wherein the legitimacy of a Last Will and Testament is established. Upon the death of the person for whom the Will was drafted – known as the “testator” or “testatrix” – the probate process can begin; however, by law, the Surrogate cannot probate the Will and issue Letters Testamentary until the eleventh (11^th) day after the death of the decedent.

Once appointed by the Surrogate, the Executor or Executrix must properly serve “Notice of Probate” and will commence his or her fiduciary obligations including, but not limited to, locating, taking control of, and preserving estate property, keeping all interested parties reasonably informed as to the status of the estate, accounting for all assets and liabilities of the estate, and acting expeditiously to settle the estate either formally or informally.

Certain estates may not require probate; for example, where the only asset is real estate owned as tenants by entirety with rights of survivorship, or a life insurance policy or financial account payable on death to a designated individual, administration of the estate may not be required. While most estates will contain at least one asset requiring appointment of an appropriate fiduciary (e.g., a car in the name of the decedent, uncashed checks issued to the decedent, or financial accounts in the sole name of the decedent), it is important to determine whether or not probate is required under the circumstances. It is also important to determine whether or not such a “non-probate” estate is subject to inheritance and/or estate tax and, if so, the filing deadlines for any returns, the amount of tax due, and who is responsible for the payment of any such tax.

Because estate administration, estate litigation, and Will contests require particular knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, your or your loved one’s Power of Attorney, suspicions of undue influence, the probate process, administration of an estate or trust, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for removing an executor or administrator from office. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.


Justin M. Smigelsky, Esq.  –  2018  –  All Rights Reserved

Probate / Estate Practice Areas: Will contests and disputes, caveats, the elective share, undue influence claims, Power of Attorney abuse and inter vivos gift disputes, drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, funeral and interment disputes, cemetery law, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, actions to compel an inventory, actions to remove a fiduciary, insolvency petitions, ejectment and eviction from estate or trust property, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

New Jersey Probate & Estate Litigation: Exceptions to the Executor’s Account

A fiduciary – an executor, administrator, guardian, or trustee – holds a position of trust. Because the fiduciary acts for the benefit of others, he must account for the manner in which he handles the assets entrusted to him. Accordingly, a fiduciary has an obligation to account to the beneficiary, at reasonable times, for each item of the estate or trust that comes into his hands.

An action by the personal representative of an estate to settle his or her account is commenced by filing a complaint and the issuance of an order to show cause in the Chancery Division – Probate Part of the Superior Court. In all actions for the settlement of accounts, interested parties (including creditors, heirs, beneficiaries, etc.) then have the opportunity to serve the personal representative with written exceptions thereto.

Pursuant to the New Jersey Rules of Court, in all actions by a fiduciary for the settlement of accounts, other than plenary actions, any interested party may serve the accountant with written exceptions to any item in or omission from the account, including any exceptions to the commissions or attorney’s fees requested. It is essential that any such exceptions be filed in a timely fashion and drafted and executed in proper form.

The exceptions to the account must state particularly the item or omission excepted to, the modification sought in the account, and the reasons for the modification. By way of example, exemptions to an account may challenge a matter described in the inventory, charges or allowances requested, items improperly omitted from the account, depreciation in investments, the executor commission, or the requested counsel fees. Exceptions which are not stricken because of insufficiency in law must be adjudicated upon an evidentiary hearing unless no factual dispute exists.

Because estate administration, estate litigation, and Will contests require specialized knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, your or your loved one’s Power of Attorney, suspicions of undue influence, the probate process, administration of an estate or trust, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting / inventory or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  –  2017  –  All Rights Reserved

Probate / Estate Practice Areas: Drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, actions to compel an inventory, insolvency petitions, will contests and disputes, caveats, the elective share, undue influence claims, Power of Attorney abuse and inter vivos gift disputes, ejectment and eviction from estate or trust property, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)




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