What is Probate and How Does it Work in New Jersey?

The Chamberlain Law Firm

Probate is the process for distributing a person’s assets to their beneficiaries after they pass away. In New Jersey, this process is designed to ensure everything is done legally and efficiently. It involves taking stock and appraising the assets left by the deceased, settling any debts, and then allocating the remaining assets to the proper heirs. As we’ve discussed in another article, having a probate lawyer can be a significant aid in working through this process.

In this guide, our New Jersey probate attorneys will take you through the ins and outs of the New Jersey probate process. We’ll cover when probate is necessary, detail its crucial steps, and delve into other critical aspects of the process. Our aim is to provide you with a clear and helpful understanding of probate in New Jersey.

When is Probate Required?

Typically, probate becomes necessary in New Jersey whenever someone passes away. The complexity of the probate process can vary based on several factors. For instance, it tends to be more straightforward when the deceased’s assets are modest and a will is in place. However, if the estate is large, there’s no will, or the will is being challenged, the process can become complicated and lengthy . Accordingly, depending on the situation, the length of probate can range from several months to several years. 

A well-organized estate plan always helps mitigate complications so read this article to learn more about estate planning. 

It’s important to recognize that not all assets need to go through the probate process. Assets like trusts, property owned jointly, and those that have a designated beneficiary (like life insurance policies) typically bypass probate. Consulting with an estate planning attorney can be incredibly beneficial if you’re aiming to have your assets avoid probate upon your passing.

What is Probate Court?

The probate court in New Jersey is known as the Surrogate Court. This specialized court plays a unique role in handling the legalities surrounding a deceased person’s estate. It is responsible for authenticating wills, ensuring the proper distribution of assets according to the will, or, in cases where there’s no will, distributing the assets according to the laws of intestate succession.

The expertise of a New Jersey probate lawyer can be invaluable when dealing with the surrogate court. A lawyer’s familiarity with local laws and court procedures can help streamline and demystify the court processes, giving peace of mind and clarity during a difficult time.

Initiating the Probate Process

The probate process in New Jersey begins as soon as someone passes away. At this point, the individual’s assets become part of their estate, unless these assets are co-owned, designated to a beneficiary, or held in a trust.

If the deceased left a will, it is given to a judge for validation. This process includes confirming the will’s legitimacy and overseeing its execution. The executor is responsible for filing both the will and the death certificate with the court.

Authenticating the Will

In New Jersey, a will must meet specific criteria to be considered valid, and it’s the role of the surrogate judge to verify that these standards are met. A will’s authenticity depends on factors like how the will was executed, whether it had witnesses, and if it was notarized.

A will must be executed by an individual who is both a legal adult and competent to be legally binding in New Jersey. This means the testator should be at least 18 years old and possess the mental capacity to understand the nature and implications of a will. Being “legally competent” involves comprehending the purpose of a will, recognizing one’s assets, and identifying the intended beneficiaries.

Challenges can arise, particularly when the testator has a cognitive impairment that might affect their understanding and decision-making abilities. In such cases, determining legal competency can become a complex issue, requiring careful legal and medical evaluation to ensure the validity of the will.

Will Contests

Occasionally, heirs may challenge a will in New Jersey. This may happen if they believe their vulnerable loved one was subject to undue influence, fraud, or similar adverse circumstances. To contest a will, the challenging party must present evidence highlighting any questionable conditions during the will’s execution. Such disputes often lead to court battles, a process where the expertise of an attorney can be invaluable.

Not everyone is able to contest a will in New Jersey. Generally, the person challenging the will must have a stake in the outcome. This means that they would benefit more under a previous will or according to the state’s intestacy laws.

Appointing the Executor

In most instances, wills specify whom the testator has chosen to serve as the executor of their estate. However, when no will exists, the court typically appoints a close relative to fulfill this role.

The designated individuals have the right to decline the executorship. There could be various reasons for this, ranging from personal circumstances like moving or health issues. If someone chooses not to accept the role, the court steps in to appoint an alternative representative. At The Chamberlain Law Firm, we encourage our clients to name one or two alternate executors in their estate plan. This can help avoid a situation where the court appoints somebody you wouldn’t want to represent your estate. 

The Executor’s Duties

Once granted legal authority by the court, the executor embarks on the task of gathering, cataloging, and valuing the assets of the deceased. This includes notifying beneficiaries named in the will or, in cases without a will, those able to inherit under the rules of intestate succession.

The executor’s responsibilities extend to settling any outstanding debts, obligations, and paying taxes. After these are paid, they distribute the remaining assets to the heirs and beneficiaries, either following the directives in the will or adhering to state law.

An executor is legally bound to manage the estate both efficiently and expediently. Ensuring that all taxes and debts are paid before allocating the remaining assets is the personal responsibility of the executor. As part of their duties, the executor should provide a detailed accounting to the beneficiaries, explaining the utilization of assets for settling expenses and debts.

While these tasks can be intimidating, working with a lawyer can significantly ease the process. A lawyer can guide the executor, helping them to fulfill their legal responsibilities effectively and safeguard against personal liability. This collaboration can be instrumental in navigating the complexities of estate management.


Depending on the circumstances, the probate process can be fairly simple or quite complex. When questions arise regarding the validity of the will, the executor’s duties, or anything else, the support of a New Jersey probate attorney can be essential.

If you need assistance in the probate process, The Chamberlain Law Firm is here to help. Give us a call today at (201) 273-9763 to set up a free consultation about your probate needs. For more estate planning tips and tricks, be sure to check out our other Insight Articles.

This article is for informational purposes only. It is not intended as legal advice. In the event you would like to speak with a lawyer about the specifics of your case, contact The Chamberlain Law Firm at (201) 273-9763 to schedule a consultation.

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