Continued from last week…

The probate process is initiated with the presenting of the original Will together with the original death certificate to the Surrogate by the executor. If the purported Will is adjudicated to be valid then the Application for Probate, an Authorization To Accept Service of Process and an Executor Qualification are prepared by the Surrogate.

The executor AKA Personal Representative will sign the Application for Probate in which he/she has asked the Surrogate to pass on the validity of the Will and to file it with the Superior Court. This application contains information on the executor and the next of kin. The next of kin given must be of the same degree of kinship had the decedent died intestate. This allows for any of the listed next of kin to contest the probate if cause arises even if not a named beneficiary in the Will.

Before an executor can perform his/her duties, an Authorization To Accept Service of Process (Power of Attorney) must be executed in favor of the Surrogate empowering the Surrogate to accept service of process in any cause in which the fiduciary, in his/her capacity as such, is a party. If someone sues the estate and personal service cannot be effected, service of process may be made upon the Surrogate. The Surrogate must mail a copy of the process to the fiduciary at the address on the Authorization.

The executor must sign the Executor Qualification that he will administer the estate according to law.

Under N.J.S.A. 3B:3-4 a Will prepared after 1978 should be “self-proved”. This meaning that there is certain language at the end of the Will in which the testator and two witnesses attest that the instrument is a Last Will and Testament, the testator is over 18 years of age, of sound mind and under no undue constraint in signing this instrument. An Attorney at Law or Notary Public must swear and subscribe to this. A Will properly self-proved may be admitted to probate without further proof of proper execution.

When a Will is not “self-proved” one of the witnesses must appear before the Surrogate to execute a Proof of Witness. If the witness to the Will is outside the county or the state at the time of probate, proof of the execution of the Will must be submitted on the deposition of the witness. At the time of application, the Surrogate will order a commission to another Surrogate (in state) or notary public (out of state) to take oath in the jurisdiction where the deposition is to be taken of the witness to the Will. A copy of the Will with an Order signed by the Surrogate requesting the deposition of the witness and the Proof of Witness form are sent to the person commissioned. The deposition of the witness is then taken under oath and certified by the person commissioned. The Proof of Witness is returned to the Surrogate.

In the case where both witnesses are deceased and the Will is not “self-proved” the signatures of both the witnesses and the Testator must be proved. One person may prove the signature of both witnesses.

When the Will is properly proven the Surrogate will enter a Judgment Admitting Will To Probate and issue Letters Testamentary which certifies the Will and is the authorization for the executor AKA Personal Representative to act on behalf of the estate.

The Surrogate will also issue an Executor Short Certificate which the executor AKA Personal Representative uses as proof of his/her authority to transfer or sell assets of the deceased. The number of short certificates needed will depend upon the number of institutions or agencies in which an asset needs to be dealt with for transferring the asset to the estate.

Stay tuned next week for Article III of The Probate Process In New Jersey.

The Bonfrisco Law Firm is a member of the American Academy of Estate Planning Attorneys.

Tags: Probate

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