Timothy J. Little Law


Attorneys at Law


Author Archives: Justin Smigelsky, Esq.

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

 

Estate Practice Areas: Appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, insolvency petitions, will contests and disputes, caveats against probate, Power of Attorney abuse, ejectment and eviction, Refunding Bonds and Releases, funeral and burial disputes, cemetery law, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

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.… Continue Reading

New Jersey Probate & Estate Litigation: Can I Draft My Own Will?

The drafting and execution of a Will is extremely technical and should not be undertaken by a layperson without legal assistance. Although numerous forms of fill-in-the-blank and do-it-yourself Will kits can be found with a few clicks of your mouse, you should never draft a Last Will and Testament without the assistance of an experienced… Continue Reading

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… Continue Reading

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… Continue Reading

New Jersey Divorce & Family Law: Dissipation of Marital Property

Marital fault on the part of one spouse is not one of the factors that may properly be taken into account in determining equitable distribution of marital assets in a given case. However, by statute, the court is required to consider “the contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in… Continue Reading

New Jersey Probate & Estate Litigation: What is Notice of Probate?

Pursuant to the Rules of Court, the personal representative of an estate is required to mail, within sixty (60) days of the probate of a will, notice in writing that the will has been probated. The “notice of probate” must be sent to the decedent’s spouse, heirs, next of kin, other persons (if any) entitled… Continue Reading

New Jersey Probate & Estate Administration: What Is Intestacy?

Pursuant to the New Jersey Probate Code, any part of a decedent’s estate not effectively disposed of by his or her Will passes by “intestate succession” to the decedent’s heirs. The intestate succession statutes provide rules and procedures for the disposition of the estate of an individual who pass away without an effective Will, and… Continue Reading

New Jersey Child Custody: Removal of a Child from New Jersey in Light of Bisbing v. Bisbing

  Following a divorce, removal of a minor child from the State of New Jersey by the custodial parent is governed by N.J.S.A. 9:2-2, which, in pertinent part, provides: When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are… Continue Reading

New Jersey Family Law: Responding to the Complaint for Divorce

  When served with a Complaint for Divorce, a prospective client will ordinarily ask – “what should I do?” Typically, in a New Jersey divorce, there will be four (4) alternatives: File an “Appearance” in which the allegations requesting the divorce are not contested, but contesting the customary issues of the divorce proceedings; File an… Continue Reading



Office Locations



Woodbridge, NJ


Chesterfield, NJ
Call Timothy J. Little, P.C. for Legal Advice

Author Archives: Justin Smigelsky, Esq.

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

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

 

Estate Practice Areas: Appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, insolvency petitions, will contests and disputes, caveats against probate, Power of Attorney abuse, ejectment and eviction, Refunding Bonds and Releases, funeral and burial disputes, cemetery law, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

New Jersey Probate & Estate Litigation: Appointment of Estate Administrator

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.… Continue Reading

New Jersey Probate & Estate Litigation: Can I Draft My Own Will?

New Jersey Probate & Estate Litigation: Can I Draft My Own Will?

The drafting and execution of a Will is extremely technical and should not be undertaken by a layperson without legal assistance. Although numerous forms of fill-in-the-blank and do-it-yourself Will kits can be found with a few clicks of your mouse, you should never draft a Last Will and Testament without the assistance of an experienced… Continue Reading

New Jersey Probate & Estate Law: What is Probate?

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… Continue Reading

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

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… Continue Reading

New Jersey Divorce & Family Law: Dissipation of Marital Property

New Jersey Divorce & Family Law: Dissipation of Marital Property

Marital fault on the part of one spouse is not one of the factors that may properly be taken into account in determining equitable distribution of marital assets in a given case. However, by statute, the court is required to consider “the contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in… Continue Reading

New Jersey Probate & Estate Litigation: What is Notice of Probate?

New Jersey Probate & Estate Litigation: What is Notice of Probate?

Pursuant to the Rules of Court, the personal representative of an estate is required to mail, within sixty (60) days of the probate of a will, notice in writing that the will has been probated. The “notice of probate” must be sent to the decedent’s spouse, heirs, next of kin, other persons (if any) entitled… Continue Reading

New Jersey Probate & Estate Administration: What Is Intestacy?

New Jersey Probate & Estate Administration: What Is Intestacy?

Pursuant to the New Jersey Probate Code, any part of a decedent’s estate not effectively disposed of by his or her Will passes by “intestate succession” to the decedent’s heirs. The intestate succession statutes provide rules and procedures for the disposition of the estate of an individual who pass away without an effective Will, and… Continue Reading

New Jersey Child Custody: Removal of a Child from New Jersey in Light of Bisbing v. Bisbing

New Jersey Child Custody: Removal of a Child from New Jersey in Light of Bisbing v. Bisbing

  Following a divorce, removal of a minor child from the State of New Jersey by the custodial parent is governed by N.J.S.A. 9:2-2, which, in pertinent part, provides: When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are… Continue Reading

New Jersey Family Law: Responding to the Complaint for Divorce

New Jersey Family Law: Responding to the Complaint for Divorce

  When served with a Complaint for Divorce, a prospective client will ordinarily ask – “what should I do?” Typically, in a New Jersey divorce, there will be four (4) alternatives: File an “Appearance” in which the allegations requesting the divorce are not contested, but contesting the customary issues of the divorce proceedings; File an… Continue Reading

Recent Blog Posts