- In New Jersey, what are the legal requirements for making a Will?
- What happens if a Will does not meet every requirement?
- What is necessary for a Will to be admitted to probate?
New Jersey revised statutes give us the requirements for making a valid Will at sections 3B:3-1 through 3B:3-3. The “testator” is the person making the Will. That is, the testator signs a Will to indicate to the world what the testator wants done with the testator’s estate. The person who actually prepares the Will is known as the “scrivener” and is usually an attorney.
At the time of making the Will:
- The testator must have been over 18 years of age,
- The testator must have been of sound mind,
- The Will must be in writing,
- The Will must be signed by the testator or at the testator’s direction while in the testator’s presence, and
- Two or more witnesses must sign the Will or sign at a reasonable time after witnessing the testator sign it.
There are many instances where the above requirements were not met completely during the making of the Will but, with the help of an estate attorney, many of those non-compliant Wills can still be admitted to probate if the Court will allow. This firm handles these type of cases regularly.
For example, often an original Will cannot be located but the scrivener may have kept a copy or an heir might have been able to find a copy of the Will in the decedent’s residence. In that case, we would file a special petition seeking to have the copy admitted.
Another example is where there a question arises about whether the testator was “of sound mind” when executing the Will. Often, this question is posed by someone seeking to challenge a Will after the testator has died, sometimes many years after the Will was made. This very complicated topic of competency to make a Will must be explored in its own, separate article.
It is vitally important that when making a Will, the testator is assisted by estate counsel that can prepare a document that will be executed in compliance with all of these requirements. This firm routinely prepares Wills, trusts, and regularly provides other estate planning services. When a Will meets all requirements, it can generally be admitted to probate by the Surrogate’s office without any court documents being filed, any court appearances, or any expensive litigation.
After the testator dies, his or her heirs will need to begin the probate process in order to have a named executor or executrix be appointed by the Surrogate and thereby have the legal authority to handle the decedent’s affairs. Until the Surrogate issues Letters Testamentary along with an Executor’s or Executrix’s Certificate, no one is authorized to act on behalf of the decedent. But what are the requirements to probate a Will?
In New Jersey, the original Last Will & Testament of a deceased person can be admitted to probate (after 10 days pass from the date of death) in the decedent’s county of residence if presented by the named executor or executrix to the surrogate with a certified death certificate and a list of heirs, so long as it meets the requirements of N.J.S.A. 3B:3-1 through 3B:3-3. The Surrogate will require that the person or persons applying to be appointed as executor(s) or executrix(es) provide notice to all of the decedent’s heirs or other individuals or entities named in the Will or otherwise having an interest in the Will.
If you are faced with the question of how to determine whether a Will is valid or the question of how to probate that Will, you should definitely consult with estate counsel. While many of the requirements discussed in this article are set out in plain language, each one is a proverbial “tip of the iceberg” with trouble and danger lurking just out of sight.
To discuss your NJ estate administration and probate 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.
Written by Christopher Balioni, Esq. of Hanlon Niemann & Wright