New Jersey Petition for Probate

Introduction

Key Things to Know

1. 1

   The Surrogate's Court of the county where the decedent was domiciled receives the application for probate of a will, for letters testamentary or for letters of administration (R. 4:80-1). It is an application, not a petition. County Surrogate offices issue their own forms, and the form the Surrogate requires controls over any draft.

2. 2

   No one has authority over estate assets until the court appoints a personal representative and letters issue. A named executor must still be appointed, and should not distribute, pay heirs or sell property before then or before the nine month claims period has run.

3. 3

   No will is admitted to probate until after 10 days from the death of the testator (N.J.S.3B:3-22). For any other time limit on offering a will, ask the county Surrogate or an attorney.

4. 4

   For a will, the named executor is nominated once the will is probated. For an intestate estate, administration goes to the surviving spouse or domestic partner if they accept, otherwise to the remaining heirs, and after 40 days without an heir claiming it the court may grant letters to a fit person. Among equals, residents are preferred over nonresidents unless the best interest of the estate would not be served (R. 4:80-5), and every fiduciary must file a power of attorney appointing the Surrogate to receive service (N.J.S.3B:14-47).

5. 5

   Notice follows probate. Within 60 days after probate, the personal representative must mail written notice to all beneficiaries and to the spouse, heirs and next of kin listed in the application, and file proof of mailing with the Surrogate within 10 days of mailing (R. 4:80-6). If a person is not first in line for letters of administration, they must file renunciations from prior or equal claimants or prove notice to them before letters are granted (R. 4:80-3).

6. 6

   Creditors must present claims to the personal representative in writing and under oath within nine months from the date of the decedent's death, not from the date of appointment (N.J.S.3B:22-4). A bond is required in cases such as administration of an intestate estate (except administration granted to a surviving spouse where the entire estate is payable to that spouse) and a nonresident executor, unless, for the nonresident executor, the will provides that no security is required (N.J.S.3B:15-1).

7. 7

   Not every estate needs probate. Assets that pass by beneficiary designation, joint ownership with survivorship or a trust usually pass outside probate, and New Jersey has affidavit procedures for some small intestate estates. See our small estate affidavit page for that route.

New Jersey Requirements for Petition for Probate

• County Surrogate's Court Receives the Application

  The application is filed with the Surrogate's Court of the county where the decedent was domiciled at death, or for a nonresident decedent any county where the decedent left property (R. 4:80-1(c)). Contested or complaint-based matters go to the Superior Court, Chancery Division, Probate Part.

• Application, Not a Petition

  R. 4:80-1(a) requires the applicant to state residence, the decedent's domicile and date of death, the names and addresses of the spouse, heirs and next of kin, and the ages of minor heirs, and to verify the application under oath, with a certificate of death or other competent proof (R. 4:80-1(b)). County Surrogate offices issue their own forms, and the form the Surrogate requires controls.

• Ten Day Wait After Death

  No will is admitted to probate until after 10 days from the death of the testator, although the papers may be filed and the executor's qualification taken earlier (N.J.S.3B:3-22). A will must be admitted to probate to nominate an executor (N.J.S.3B:3-18).

• Priority and Nonresident Preference

  Intestate administration goes to the surviving spouse or domestic partner if they accept, then to the remaining heirs, and after 40 days without an heir claiming it the court may grant letters to a fit person (N.J.S.3B:10-2). Residents are preferred over nonresidents among equals unless the best interest of the estate would not be served (R. 4:80-5), and every fiduciary files a power of attorney appointing the Surrogate to receive service (N.J.S.3B:14-47).

• Notice to Prior or Equal Claimants

  Before letters of administration are granted to a person who is not first in line, notice goes to prior or equal persons who have not renounced: at least 10 days for those residing in New Jersey, and at least 60 days for those residing outside New Jersey, or not less than 10 days as the Surrogate orders (R. 4:80-3).

• Notice of Probate Within 60 Days

  Within 60 days after probate of a will, the personal representative mails written notice to all beneficiaries and to the persons listed in the application, and files proof of mailing with the Surrogate within 10 days of mailing (R. 4:80-6). Unknown names or addresses are handled by publication in a county newspaper of general circulation.

• Nine Month Claims Period From Death

  Creditors present claims to the personal representative in writing and under oath within nine months from the date of the decedent's death (N.J.S.3B:22-4). A claim not presented in that time does not make the personal representative liable for assets already paid or delivered.

• Bond in Enumerated Cases

  A bond is required in the cases listed in N.J.S.3B:15-1, including administration of an intestate estate (except administration ad litem or administration granted to a surviving spouse where the entire estate is payable to that spouse) and a nonresident executor, unless the will provides that no security is required.