Kulzer & DiPadova, P.A.
76 E. Euclid Avenue, Suite 300
Haddonfield, New Jersey 08033-2342

P: 856.795.7744
F: 856.795.8982
E: info@kulzerdipadova.com

News, Articles & Resources

Fundamentals of Probate Litigation

Posted In:

Administration Procedure and Timing

According to an article in the AAA Dispute Resolution Journal, an estimated $41 trillion of wealth will be transferred from the “Greatest Generation” to their children, the Baby Boomers, between 1998 and 2052.  This massive transfer of wealth through estates both large and small has spurred a dramatic increase in probate litigation in recent years.

Other factors have also contributed to the trend, including an aging population more prone to dementia, the rise of blended families, a more litigious society, and the role of the Internet in providing free or low-cost DIY estate planning services and spreading news of celebrity estate lawsuits through social media.

This series of articles will explore the fundamentals of probate litigation.  This first article will review the basic procedures of estate administration and where, when and how to commence probate litigation.

Estate Administration Procedure

County Surrogate. Estates are typically administered through the Surrogate’s Court of the County of which the decedent died a domiciliary.  See Rule 4:80-1.  However, Rule 4:82-1 provides the Surrogate’s Court may not act in six situations:

(1)  A caveat has been filed with the Surrogate before the entry of its judgment;

(2)  A doubt arises on the face of a will or a will has been lost or destroyed;

(3)  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;

(4)  The application is to appoint an administrator pendente lite or other limited administrator;

(5)  A dispute arises before the Surrogate’s Court as to any matter; or

(6)  The Surrogate certifies the case to be of doubt or difficulty.

In these situations, administration may only proceed upon application to the Superior Court, Chancery Division, Probate Part.  All actions in this Court must be brought in a summary manner by the filing of a complaint and issuance of an order to show cause.  See Appendix XII-I to the N.J. Rules of Civil Practice for sample Orders to Show Cause.[i]

What is a caveat? A caveat is a formal notice, filed with the Surrogate, to prevent the probate of a Will or the grant of administration of an Estate.  N.J.S.A. 3B:3-22 prohibits the probate of a will earlier than ten (10) days after the testator’s death.  This statute does not apply to caveats (or complaints brought against the estate), which may be filed any time after the decedent’s death.

Thus, if you are concerned about the possible submission to the Surrogate of an invalid will, a caveat works to prevent acceptance by the Surrogate of any document purporting to be a will.  The Chancery Judge will then hear any issues of concern prior to admitting any document for probate.

Who can file a caveat? Only the following persons have the requisite “standing” to file a caveat:

  • Individuals with potential financial injury by entry of judgment
  • Beneficiary in challenged Will
  • Beneficiary in prior Will
  • Heirs at law

Deficient wills. The Surrogate may only admit to probate wills fully in compliance with N.J.S.A. 3B:3-2(a), meaning the will is:

  • in writing;
  • signed by the testator (or on behalf and at the direction of the testator by someone in their conscious presence); and
  • signed by at least two witnesses.

The will must be an original.  The Surrogate may not admit a copy of a will (even a “true and correct copy” from a law office) to probate.  If the original will cannot be found, the will is presumed to have been destroyed and revoked.[ii]  To be admitted to probate, a copy of a will must be submitted to the Superior Court by verified complaint and order to show cause, with notice given to all parties with an interest in the estate or the alleged will.  The proponent of the will bears the burden of proving by clear and convincing evidence the original will was lost and not destroyed.[iii]

The Surrogate also may not admit to probate “holographic”, i.e. handwritten, wills or writings intended as wills, which may only be admitted upon application to the Superior Court.  These actions will be discussed in a later article.

The Surrogate may also choose to remove the matter to the Superior Court on its own accord.

What if the Surrogate has already admitted a will to probate and commenced administration? A complaint challenging the validity of the admitted will may still be filed in the Superior Court once an executor or administrator has been appointed.  However, strict deadlines apply.


An element of probate litigation that often surprises general litigators is the applicable deadlines are extremely short compared with other areas of law.  For example:

  • Actions to contest the acceptance of a will and/or appointment of an executor must be brought within four (4) months after probate or the grant of letters of appointment (or six (6) months if the person challenging the will lives outside of New Jersey). Rule 4:85-1
  • Actions by a creditor of the decedent seeking payment of a claim against the estate must be brought within nine (9) months from the date of death. N.J.S.A. 3B:22-4
  • Claims for elective share by a surviving spouse of the decedent must be brought by filing a complaint in the Superior Court within six (6) months after appointment of a personal representative. N.J.S.A. 3B:8-12
  • Actions for fraud in connection with the administration of an estate must be brought within two (2) years from date the fraud was discovered (as opposed to the typical 6-year statute of limitations). N.J.S.A. 3B:1-9

It is important to note the limitation periods are further compressed because the time runs from the date the will was accepted, and not the date of notice to the beneficiary.  Under Rule 4:80-6, notice of probate is not required for sixty (60) days thereafter, which means, for instance, the time to bring a will contest may be as little as two (2) months after first learning the will existed.  Furthermore, the notice of probate is no longer required to include a copy of the will, only that it is available upon request.

Rule 4:85-2 provides for a thirty-day extension of the time to file a complaint challenging the validity of a will “upon a showing of good cause and the absence of prejudice.”  However, “good cause” generally refers to matters beyond the plaintiff’s control (such as minority, disability or incapacity), and New Jersey caselaw has not established any formal “discovery rule” to toll the statute.

A common, and unfortunate, scenario finds an aggrieved beneficiary who, after receiving notice a will has been probated, tries to contact the executor for more information or to “work things out” without filing a lawsuit.  When talks break down, the aggrieved beneficiary may fine they are out of time to challenge the will.  Promptly filing a complaint at the first indication of doubt or suspicion may seem premature compared with the general practice of law and its multi-year statutes of limitations, but in probate matters, swift action is often essential to protect a plaintiff’s basic right to be heard.

The next set of articles will examine specific types of probate litigation matters, beginning with the Will Contest.

[i] https://www.judiciary.state.nj.us/attorneys/assets/rules/app12i.pdf

[ii] See In re Roman’s Will, 80 N.J. Super. 481, 483 (Hudson Co. Ct. 1963).

[iii] See In re Davis’ Will, 127 N.J. Eq. 55, 57, 11 A.2d 233, 235 (1940).

Sign Up For Our Newsletter

"*" indicates required fields