By: Justin M. Smigelsky, Esq.
New Jersey law requires a period of ten (10) days to elapse between the death of the testator and the probate of his or her Last Will and Testament; therefore, a contestant is provided with what is ordinarily a short period of time within which to file a “caveat” against the probate of the Will. A caveat against the probate of a Will is a legal notice that should be filed with the Surrogate’s Office in the county where the decedent resided at the time of his or her death. Once a caveat is filed with the Surrogate’s Office, the Surrogate is prevented from acting, and anyone challenging the caveat must file a complaint upon an order to show cause in the Superior Court, Chancery Division – Probate Part. A caveat serves to preclude the entry of the probate judgment until the order to show cause is filed, the matter is set for a hearing, and the validity of the Will may be determined. In other words, upon the filing of a caveat, the Will may not be probated and appointment of the executor or executrix can not take place while the caveat remains on file.
Only a party who might be injured by the admission of the Will to probate may file a caveat against admission of the Will – this includes a next-of-kin, a judgment creditor, or a beneficiary under an earlier Will executed by the testator. A caveat should be filed in the Surrogate’s Office in every county where the decedent may have been domiciled – if the decedent had more than one residence, or if he had property in more than one county, the caveator should protect his interests in the event the Will is presented for probate in any one of those counties.
Although the validity of a Will may be challenged for a certain period of time after it has been admitted to probate (generally, four months), if a caveat is properly filed, it prevents the executor or executrix from receiving letters testamentary; if, on the other hand, an action is filed to set aside the Will after it has been admitted to probate, the executor or executrix would have been already permitted to undertake administration and, possibly, distribution. In sum, it is usually advantageous to prevent the probate of a doubtful Will by filing a caveat, rather than seeking to challenge the probate judgment after the Will has been admitted.
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 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. / Timothy J. Little, P.C., 2016, all rights reserved
Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. The attorneys at Timothy J. Little, P.C. represent individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Hazlet, Aberdeen, Matawan, Keyport, Cliffwood Beach, Middletown, Freehold), Union County, Ocean County, Somerset County, and Burlington County.