By statute, no Will may be admitted to probate until after 10 days from the death of the testator (N.J.S.A. 3B:3-22). This gives a 10 day head start to any individual who has reason to block the probate of the Will.
Take the Initiative: File a Caveat
File a Caveat with the Surrogate's Court.
While it is possible to challenge a Will once it has been admitted to probate, generally speaking, blocking that probate in the first place places a greater burden on the person offering the Will for probate. Therefore, within the 10 day statutory period (or before the Will has been admitted to probate) file a Caveat with the Surrogate's Court.
A Caveat is a written objection to the probate of a Will.
After the Caveat has been Filed
New Jersey court rules state that the Surrogate's Court may not admit a Will to probate where a Caveat has been filed (4:82). The Surrogate does not have discretion to allow the probate. The burden now shifts to the proponent of the Will to prove its validity in Superior Court. This requires a full-blown court action with service of process. It also allows the opponent of the Will to argue reasons as to why the Will should not be probated. If an agreement is reached later, the Caveat may be removed.
The Caveat is a useful tool to prevent the ease of the probate process in Surrogate's Court from adversely effecting your client. In a situation where 2 Wills are found and there is a question as to the validity of each, file a Caveat to prevent the Will that would be offensive to your client from being admitted to probate.
Also, remember to file the Caveat in as many counties as you think could potentially admit the offending Will to probate. The counties don't publish lists of filed Caveats and this could cause a harmful result if the decedent had ties to more than one county. The cost of filing is cheap compared with the cost of an action to set aside a probate. Also, irreversible damage may be done by the nominated Executor by the time the probate is set aside.
Our Rating is calculated using information the lawyer has included on their profile in addition to the information we collect from state bar associations and other organizations that license legal professionals. Attorneys who claim their profiles and provide Avvo with more information tend to have a higher rating than those who do not.
What determines Avvo Rating?
Experience & background
Years licensed, work experience, education
Legal community recognition
Peer endorsements, associations, awards
Legal thought leadership
Publications, speaking engagements
This lawyer was disciplined by a state licensing authority in .
Disciplinary information may not be comprehensive, or updated. We recommend that you always check a lawyer's disciplinary status with their respective state bar association before hiring them.