What if I Can’t Find the Original Will?

HNW Estate Administration and Probate, Will Contest and Probate Litigation

probate administration

  •  NJ Estate and Probate laws allow for a copy of a Will to be probated under limited situations
  • This article discusses how to probate a copy of a lost original Will
  • This article also discusses whether it is better to avoid probating a lost original Will in NJ and instead rely upon the state’s probate laws governing estates with no Will or Trust

Probating a Lost Will:  Here’s What to Do

Following a death family members will often ask, “What if I can’t find the original Will”, meaning “can we probate a copy of a lost original Last Will and Testament”? The answer is yes unless there is a dispute about the contents of the Will or why the original Will cannot be found.

The law presumes that if an original Last Will cannot be located then the testator (the person who signed the Will) intentionally destroyed it because it no longer represented his or her wishes.  But, what if that isn’t the case, it’s as simple as being lost or misplaced?

In either case a copy of the Original Will can be admitted to probate but not as easy as probating an original Will with the Surrogate’s Office.  A Judge must review the circumstances surrounding the absence of the original Will and decide whether it is likely that the testator destroyed the Will or that it was simply lost.

The Process of Probating a Last Will

The Executor named in the Will must file a Complaint in Superior Court asking the Probate Judge to issue an order permitting the probate of the Will’s copy.  In support of the application, the named Executor must explain what efforts he or she made to locate the original Will.   It is helpful to explain what is known about where the Will was kept and the last time anyone saw it.  For example, the Testator may have moved his/her residence and boxes of documents may have been misplaced or destroyed.  All of the details known about the last location of the original Will and the efforts made to locate it are explained to the Judge in writing by way of a certification.

Once a copy of the Will is admitted the probate process is the same as when an original Will is probated. Once approved judicial involvement ends.

Another option is to precede without the Will in accordance with the intestacy laws.  When someone dies without a Will, New Jersey law establishes who has the right to serve as administrator (the equivalent of an executor under the Will) and who is entitled to receive probate assets (the assets that would have passed by way of the Will as lawful heirs).  There are pros and cons to this approach.

The first question is whether under New Jersey’s intestacy laws the beneficiaries will be the same and whether the distribution of Estate assets will be greater or less to than to certain beneficiaries provided for in the Last Will. If the answer is the same then filing an application for interstate administration may avoid the legal expense of filing an application to probate a copy of the Will.   There is, however, another potential cost – the requirement to post a bond.

A bond is issued by a surety company and protects against the possibility that the executor or administrator does not distribute the Estate assets to the person(s) who are entitled to them.  The cost of the bond depends on the size of the estate and can be several thousand dollars or more.  Most Wills waive the requirement of a bond because of costs to the estate and trusted family members are usually designated as executor.  Most Surrogates, however, require an administrator to post a bond in every instance except when the administrator is the surviving spouse.

So from a cost standpoint the question is which is more costly – the legal expenses of going to Court or the cost of the bond.

To discuss your NJ Will Contest and Probate Litigation matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Will Contest and Probate Litigation Attorney

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