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)