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 the Superior Court, the Surrogate’s Court shall not act in any matter in which:
- A caveat has been filed with it before the entry of its judgment;
- A doubt arises on the face of a will or a will has been lost or destroyed;
- The application is to admit to probate a writing intended as a will as defined by N.J.S.A. 3B:3-2(b) or N.J.S.A. 3B:3-3;
- The application is to appoint an administrator pendente lite or other limited administrator;
- A dispute arises before the Surrogate’s Court as to any matter; or
- The Surrogate certifies the case to be of doubt or difficulty.
When the Surrogate is prohibited from acting, any person in interest can apply to the Chancery Division, Probate Part for an order to show cause why the relief requested should not be granted. In one of the most-recent decisions to address jurisdiction of probate matters, In re Estate of Stockdale, 196 N.J. 275 (2008), the loss of jurisdiction of the Surrogate’s Court once a caveat has been filed was confirmed; specifically, the New Jersey Supreme Court explained:
Although an uncontested, straightforward will may be admitted to probate through the Surrogate’s Court, as distinguished from the Probate Part of the Chancery Division of the Superior Court, and although letters testamentary or letters of administration may be issued thereon in that forum…if there is a dispute about the will…or if a caveat has been lodged against the will offered or expected to be offered for probate, the Surrogate’s Court is not empowered to act and the issues must instead be resolved through proceedings in the Superior Court, Chancery Division, Probate Part…
The Court further explained:
The act of lodging, or filing, the caveat prevents the Surrogate from issuing letters that otherwise would operate so as to authorize a particular individual or entity to begin the administration of the estate and causes the matter to be pursued, generally in a summary matter…in the Probate Part…Alternatively, if a will has already been admitted to probate, it may be challenged by the timely filing of a complaint in the Probate Part.
Accordingly, when the Surrogate does not have or has lost jurisdiction in certain probate matters, it may be necessary to commence proceedings in the Superior Court, Chancery Division, Probate Part.
Because probate, estate litigation, and Will contests require specialized knowledge, you may wish to consult with an experienced attorney if you have any questions regarding your inheritance, a loved one’s or your own Last Will and Testament, the probate process, administration of an estate or trust, the elective share of a surviving spouse, fiduciary obligations, refunding bonds and releases, and preparation or filing of an accounting for the administration of an estate or trust. 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. / 2017 / All Rights Reserved