Does a Will Have to Be Probated?

In this video we discuss what happens when a will is invalid.

A will that meets the minimum requirements needs to be filed and approved by the County Surrogate who will review that it meets the requirements for a will.  Along with the will you also need to supply a certified copy of a death certificate.

Wills That Are Invalid

What happens if you have a will that doesn’t have the minimum requirements? For example, what if a will has a codicil (testamentary document that amends a will) where the codicil does not have self proving affidavits and where as far as we can tell the witnesses are no longer alive. Or what if a will is contested? Then you have to have a judicial hearing. All hearings will be conducted before the Superior Court, the Chancery Division, Probate Part. Even when wills are uncontested, if they don’t meet the requirements for validity, the will needs to go before the court.

For example, a holographic will which in New York is called a noncupative will, is something that is in the testators handwriting. It doesn’t all have to be in the testators handwriting. The signature and material provisions have to be. Witnesses are not necessary, although you do have to establish that it was in fact the signature and handwriting of the decedent.

New Jersey recognizes as a will any writing intended by the decedent to be his or her will, even if it has none of the other indicia of a will (doesn’t have witness, doesn’t say that this is my last will.) But, if the proponents of the document that it was the decedents last will, can show by clear and convincing evidence, which is a higher standard that it is more likely than not, then if they can show the testators intent, even if unsigned and unwitnessed, the probate part will accept such as writing as if it was the last will.

Questions?

The will and estates team at Gartenberg Howard is available to answer your questions and help you through the difficult process of validating or contesting a will. Our specialists in New Jersey and New York law can guide you through the probate process.