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Author Archives: Justin Smigelsky, Esq.

New Jersey Probate & Estate Litigation: Who is Entitled to the Joint Bank Account?

Unfortunately, disputes regarding joint bank accounts are very common in New Jersey estate litigation. Oftentimes, joint accounts will be established with an elderly parent for convenience purposes or a joint account will be created with a “right of survivorship” in an effort to make a testamentary disposition (a “poor man’s Will”). Most people, however, fail… Continue Reading

Probate & Estate Litigation: New Jersey’s Revised Durable Power of Attorney Act

Until the development of the durable power of attorney, expensive, time-consuming, and intrusive guardianship proceedings would be necessary in the event of incapacitation. The power of attorney, however, is an inexpensive, swift, and far-less intrusive mechanism to address incapacity or unavailability – with a properly drafted and executed power of attorney, guardianship or conservatorship actions… Continue Reading

New Jersey Probate & Estate Litigation: Jurisdiction of the Surrogate vs the Superior Court, Chancery Division, Probate Part

Ordinarily, application for the probate of a will, for letters testamentary, or for letters of administration will be filed with the county Surrogate. However, as set forth in the Rules Governing the Courts of the State of New Jersey, there are certain matters in which the Surrogate may not act; specifically, unless explicitly authorized by… Continue Reading

New Jersey Probate & Estate Litigation: Compelling Production of a Last Will & Testament

Any interested party may file an Order to Show Cause and Verified Complaint to compel production of a purported Last Will and Testament or information as to its existence of whereabouts. Pursuant to the New Jersey Probate Code (N.J.S.A. 3B:3-29): The Superior Court shall have jurisdiction to compel discovery as to the existence or whereabouts… Continue Reading

New Jersey Probate & Estate Litigation: Contesting a Will for Improper Form or Execution

In determining whether grounds exist to challenge the validity of a Last Will and Testament, an analysis must be made as to whether the purported Will was prepared and executed in conformance with the New Jersey Wills Act. Pursuant to N.J.S.A. 3B:3-2, a Will must be: In writing; Signed by the testator or in the… Continue Reading

New Jersey Probate & Estate Litigation: Lack of Capacity as Grounds for Will Contest

By: Justin M. Smigelsky, Esq. The validity of a purported Last Will and Testament may be challenged for many reasons, including that the testator or testatrix lacked the mental capacity to make the Will. Generally, for purposes of a Will contest, the contestant has the burden of proving that the testator or testatrix did not… Continue Reading

New Jersey Estate Litigation: Old Bridge Funeral Home v. Pruckowski, et al., and the Importance of Naming a Funeral Agent in Your Will

By: Justin M. Smigelsky, Esq. 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. In a recent unpublished decision of the Appellate Division, Old Bridge Funeral Home, LLC v. Pruckowski, et… Continue Reading

New Jersey Probate & Estate Litigation: Undue Influence as Grounds for Will Contest

By: Justin M. Smigelsky, Esq. The validity of a purported Last Will and Testament may be challenged for many reasons including undue influence. Undue influence is defined as mental, moral, or physical exertion resulting in the destruction of the free agency of the testator. Despite the popular misconception, undue influence may be accomplished by either… Continue Reading

New Jersey Probate & Estate Administration: The Refunding Bond and Release

By: Justin M. Smigelsky, Esq. Pursuant to the New Jersey Probate Code, the personal representative of an estate (executor, executrix, administrator, or administratrix) is required to “take a refunding bond” upon making a distribution to a beneficiary of the estate. Specifically, N.J.S.A. 3B:23-24 states: A personal representative shall, on paying a devise or distributive share… Continue Reading



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Author Archives: Justin Smigelsky, Esq.

New Jersey Probate & Estate Litigation: Who is Entitled to the Joint Bank Account?

New Jersey Probate & Estate Litigation: Who is Entitled to the Joint Bank Account?

Unfortunately, disputes regarding joint bank accounts are very common in New Jersey estate litigation. Oftentimes, joint accounts will be established with an elderly parent for convenience purposes or a joint account will be created with a “right of survivorship” in an effort to make a testamentary disposition (a “poor man’s Will”). Most people, however, fail… Continue Reading

Probate & Estate Litigation: New Jersey’s Revised Durable Power of Attorney Act

Probate & Estate Litigation: New Jersey’s Revised Durable Power of Attorney Act

Until the development of the durable power of attorney, expensive, time-consuming, and intrusive guardianship proceedings would be necessary in the event of incapacitation. The power of attorney, however, is an inexpensive, swift, and far-less intrusive mechanism to address incapacity or unavailability – with a properly drafted and executed power of attorney, guardianship or conservatorship actions… Continue Reading

New Jersey Probate & Estate Litigation: Jurisdiction of the Surrogate vs the Superior Court, Chancery Division, Probate Part

New Jersey Probate & Estate Litigation: Jurisdiction of the Surrogate vs the Superior Court, Chancery Division, Probate Part

Ordinarily, application for the probate of a will, for letters testamentary, or for letters of administration will be filed with the county Surrogate. However, as set forth in the Rules Governing the Courts of the State of New Jersey, there are certain matters in which the Surrogate may not act; specifically, unless explicitly authorized by… Continue Reading

New Jersey Probate & Estate Litigation: Compelling Production of a Last Will & Testament

New Jersey Probate & Estate Litigation: Compelling Production of a Last Will & Testament

Any interested party may file an Order to Show Cause and Verified Complaint to compel production of a purported Last Will and Testament or information as to its existence of whereabouts. Pursuant to the New Jersey Probate Code (N.J.S.A. 3B:3-29): The Superior Court shall have jurisdiction to compel discovery as to the existence or whereabouts… Continue Reading

New Jersey Probate & Estate Litigation: Contesting a Will for Improper Form or Execution

New Jersey Probate & Estate Litigation: Contesting a Will for Improper Form or Execution

In determining whether grounds exist to challenge the validity of a Last Will and Testament, an analysis must be made as to whether the purported Will was prepared and executed in conformance with the New Jersey Wills Act. Pursuant to N.J.S.A. 3B:3-2, a Will must be: In writing; Signed by the testator or in the… Continue Reading

New Jersey Probate & Estate Litigation: Lack of Capacity as Grounds for Will Contest

New Jersey Probate & Estate Litigation: Lack of Capacity as Grounds for Will Contest

By: Justin M. Smigelsky, Esq. The validity of a purported Last Will and Testament may be challenged for many reasons, including that the testator or testatrix lacked the mental capacity to make the Will. Generally, for purposes of a Will contest, the contestant has the burden of proving that the testator or testatrix did not… Continue Reading

New Jersey Estate Litigation: Old Bridge Funeral Home v. Pruckowski, et al., and the Importance of Naming a Funeral Agent in Your Will

New Jersey Estate Litigation: Old Bridge Funeral Home v. Pruckowski, et al., and the Importance of Naming a Funeral Agent in Your Will

By: Justin M. Smigelsky, Esq. 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. In a recent unpublished decision of the Appellate Division, Old Bridge Funeral Home, LLC v. Pruckowski, et… Continue Reading

New Jersey Probate & Estate Litigation: Undue Influence as Grounds for Will Contest

New Jersey Probate & Estate Litigation: Undue Influence as Grounds for Will Contest

By: Justin M. Smigelsky, Esq. The validity of a purported Last Will and Testament may be challenged for many reasons including undue influence. Undue influence is defined as mental, moral, or physical exertion resulting in the destruction of the free agency of the testator. Despite the popular misconception, undue influence may be accomplished by either… Continue Reading

New Jersey Probate & Estate Administration: The Refunding Bond and Release

New Jersey Probate & Estate Administration: The Refunding Bond and Release

By: Justin M. Smigelsky, Esq. Pursuant to the New Jersey Probate Code, the personal representative of an estate (executor, executrix, administrator, or administratrix) is required to “take a refunding bond” upon making a distribution to a beneficiary of the estate. Specifically, N.J.S.A. 3B:23-24 states: A personal representative shall, on paying a devise or distributive share… Continue Reading

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