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Within 5 days of my mother's death, my sister filed a "Complaint for probate of will" in NJ. What papers should I have gotten?

Bayville, NJ |

I didn't receive anything. No copy of the will, no copy of the probate, nothing. Who should have notified me of the probate? And what are the consequences to her if she didn't tell the court about me being next of kin? She claims she was named executor in the will, is there a way to find out from the Surrogate court if that's true? It seems fishy that she didn't want me involved being that I'm supposed to get 1/3 the proceeds of the estate. My other sister denies getting any paperwork either. What would be a reason for her not telling the probate court about us unless she was up to no good?

Attorney Answers 4

Posted

Probate courts require that an application to the court be made by the person who intends to be the personal representative of the estate. That application should include the names and addresses of the deceased's spouse and heirs. However, formal notice may not be provided to the spouse and heirs until the applicant actually becomes the personal representative. See the NJ Surrogate Court rules here: http://www.judiciary.state.nj.us/rules/r4-80.htm

You do not state how much time has passed since the complaint was filed, but one reason may be that your sister has not yet been approved as PR. I find that suspicions like the one you have raised can be avoided by a person sharing copies of the will with family members, but depending upon how a person is treated under the will, sharing can also be uncomfortable. If you want to obtain a copy of the documents filed sooner, contact the clerk of the Surrogate Court where the complaint was filed (presumably where your mother resided). You will likely have to pay a fee for copies, but you will have more peace of mind.

If this answer is helpful or you feel it is the best answer, please click that option. This response is for general informational purposes only and not for the purpose of providing legal advice. The writer is only licensed to practice law in TN. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the answers by the named attorney do not create an attorney-client relationship between said attorney and the user or browser.

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Asker

Posted

Thank you for your answer. It has been almost 9 months since it went to probate. An offer has been made on my mother's house so I asked my sister when I have to sign papers and she said I didn't have to sign anything. I began to wonder why I didn't need to sign anything nor received any papers. Something doesn't seem right that she's keeping me out of the loop.

Asker

Posted

One more question, if I go to the Surrogate court to get a copy of the probate, will I be able to get a copy of the will too?

Gary Todd Dupler

Gary Todd Dupler

Posted

Yes, if I were you I would want to follow up and obtain those copies. As for the will, you should be able to obtain a copy of the will and anything else that has been filed in the case.

Asker

Posted

My sister just emailed me a copy of the will and it doesn't name an executor. She also sent me a copy of the surrogate page that names her executrix of the will. Wouldn't it say that she was Administrator if no one was named in as one in the will?

Gary Todd Dupler

Gary Todd Dupler

Posted

She would be an administrator under those circumstances in TN, not sure in NJ. As a practical matter, either title has the same duties. Again, if I were you I would want copies of the rest of the case file.

Asker

Posted

Thank you so very much for your help. I suspect foul play as the language of the (only) probate letter she sent me said, "...and that the executrix [sister's name] therein named..." yet nowhere in the will she sent me was an executrix named.

Posted

A Will can get filed in one of two manners. The first and most common is ex parte. That is when the Executor brings the Will into the Surrogate's office along with a certified copy of the death certificate and a filing fee. The Will can be filed at any time; however, it will not be admitted to probate until ten days after a testator's death. If it is admitted in this manner, no prior notice needs to be given to any party. However, a notice that the Will has been probated must be servied on all heirs under the Will plus next of kin (whether or not they are mentioned in the Will) within 60 days after the Will has been admitted by the Surrogate. The notice must either provide a copy of the Will or let those receiving notice that they have a right to a copy of the Will without charge from the Executor. Having said that, if the Will is filed, you can obtain a copy from the Surrogate. The second way a Will gets filed is through solemn form. That is when the Executor has to get approval from the Superior Court to have the Will admitted to probate. In that case, a notice of the hearing as well as any relevant pleadings must be provided in advance to the same group of individuals. Good luck.

This response does not constitute the establishment of an attorney-client relationship. It is also not to be taken as firm legal advice as such would be contingent on a full inquiry by the attorney into the complete background of the facts and circumstances surrounding this matter. The response is meant to be a helpful guide to a question in a manner which reflects the limited information provided by the inquirer.

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Asker

Posted

I can look online at public records and it has a docket number with the words, "Complaint for probate of will". I'm not sure which type that would be. Now my question is what happens if my sister didn't put me down as next of kin on the probate papers? I read that she has to show proof of mailing for next of kin and since she didn't mail the papers, I think she might have just left my name entirely off of the probate papers. I'm entitled to 1/3 of the estate, will I have to get a lawyer in order to get my share if my name was left off the probate papers?

Thomas Devlin Begley III

Thomas Devlin Begley III

Posted

If your sister doesn't put down the proper notice, you can get any relief set aside. The better course of action is to hire an attorney to protect your interests. Good luck.

Posted

Your sister has no obligation to give you anything on filing probate application. Will probate is deferred until 10 days after death. A caveat may be in order but you'd need legal consult immediately because a caveat can be filed only before probate is granted.

Lawrence Friedman, FriedmanLaw, Bridgewater, NJ, 908-704-1900. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.

Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.

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Posted

It's been over 9 months already. I read she had 60 days to send me a copy.

Posted

As Mr. Begley notes, a Will may be presented by the designated executor/executor or personal representative without notice to anyone, HOWEVER the Rules of Court require that within 60 days, as I believe Mr. Begley also points out, Notice of Probate must be given to all named beneficiaries and those who would take if the decedent died intestate (without a will).

This would give you an opportunity to file a caveat or protest to the probate of the will. Other than that, the named executor/executrix has no obligation to account to beneficiaries for 12 months following issuance of Letters Testamentary by the Surrogate.

BTW: A failure to give the required Notice of Probate does NOT invalidate the probate.

Unless you can show that your sister has unduly influenced your deceased parent, or has mishandled the administration of your deceased parent's estate, you will get your one-third, and any smart attorney assisting your sister, would assk you to sign a Release or a Release and Refunding Bond waiving all claims against your sister. If you do not get an informal accounting, this is when you can demand that your sister provide an informal or formal (reviewed by the court) prior to signing the Release.

The foregoing is not intended to be legal advice upon which you may rely as I have not been retained for this purpose.

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Posted

Thank you, I sort of figured that she would get away harm free even though it is now obvious that she photo-shopped the will and put her name in as executrix. I read that she's entitled to take 5% for herself and 1% for an assistant of the estate assets because she was named as executrix. I think that's what she's up to.

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