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RayAnswers, Attorney
Category: Estate Law
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Experience:  Texas lawyer for 30 years in Estate law
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My mother recently passed away in New Jersey.. We can only

Customer Question

My mother recently passed away in New Jersey. . We can only find a copy of the last will. We did find a power of attorney that was notarized on the same date as the will so it shows it is a real will to prove signatures and notary.
My deceased brother has 2 children, one is a minor. I need to tell their mother we need to probate a copy of the last will. What is the best strategy to get the will probated? If she writes a letter and accepts the copy of the will, is that enough to get it through the probate court in New Jersey? The lawyer I know said I just need the letter to show that they accept the copy of the will. Will the probate court appoint a legal guardian for the minor grand child, or will their letter be enough to get the will through?
Submitted: 5 months ago.
Category: Estate Law
Expert:  RayAnswers replied 5 months ago.

Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question, conduct and prepare your response.

Expert:  RayAnswers replied 5 months ago.

The lawyer will make application to probate the will.The application has to show why the original is unavailable.You will need a lawyere to get this through probate.They may need witnesses to attest to its authenticity.

In general, if the original document cannot be located and all beneficiaries or potential heirs of the Estate agree to probating a copy, the process can be smoothly completed once a proper application is filed. On the other hand, should a named beneficiary or a potential heir of the Estate challenge the copy of the Will being submitted for probate, then in that event, the resolution may become onerous.

In general, if an original of a Will cannot be located there is a presumption that the original was destroyed by the Decedent, and therefore, was revoked. Once a Will has been revoked or destroyed, either the decedent will be deemed to have died without a Will, or possibly a previous Will can be submitted for probate provided an original document with original signatures exists.

Should a party file an action to probate a copy of the purported Last Will and Testament, this party must rebut the presumption that the original was not destroyed and revoked by clear and convincing evidence. This is a very difficult burden of proof to sustain, as the evidence must clearly and convincingly demonstrate that the original was not destroyed, but instead, was lost and that the Court is justified in probating a copy of the Will.

Any person who opposes probating a copy of a Will may seek to present proof that the Will was in fact revoked. As such, a hearing on the merits before the Court is typically required in contested matters. During an evidentiary hearing, the Court would have to determine whether the copy of the Will should be admitted to probate and whether the legal presumption of revocation has been rebutted by clear and convincing evidence by the proponent of the Will.

As discussed above, should the burden of proof not be met by the proponent of the copy of the Will, then in that event, the Decedent will have deemed to have died without a Will. It is possible, however, if a pre-existing Will exists which contains original signatures that this previous Will could be admitted to probate. As such, seeking to probate a copy of a lost Will can be difficult and costly should a party oppose its admission to probate.

You r lawyer will ensure that the original is accepted by the court.

I appreciate the chance to help you tonight.Sorry fro your loss of loved one.

If you can positive rate 5 stars it is much appreciated.

Expert:  RayAnswers replied 5 months ago.

Summary of NJ w here

Under New Jersey Court Rule 4:82, the Surrogate may not act when a copy of the will, rather than the original is presented for probate.

Instead, a verified complaint along with an order to show cause must be filed with the court.

The verified complaint must clearly state the reasons for supporting that the will copy is authentic and should be admitted into probate. Moreover, because as a plaintiff, you are filing a verified complaint, when you sign the complaint you are attesting to the truth of it, as well.

The second document to be filed is called an order to show cause. An order to show cause will give notice to all interested parties as to a hearing date to consider the request for probate of the will.

The document is filed and later returned to the plaintiff with a hearing date set by the court. All interested parties shall then be served with a copy of the complaint and the completed order to show cause. Any interested party who wishes to be heard must first file a written answer to the verified complaint as noticed in the order to show cause. In the case of an interested party who is a minor or incapacitated, a guardian ad litem, or an appointed attorney, is needed to represent the interest.

Under Court Rule 4:83, court papers are to be filed with the Surrogate in the county where the decedent resided. In Gloucester County, the Surrogate Building is located at 17 N. Broad St., 1st floor, P.O. Box 177, Woodbury, NJ###-##-####

Customer: replied 5 months ago.
What needs to be in a letter from the 2 beneficiaries saying they will accept the copy of the will for probate. One is a minor , the son is 23.
The mother is fine using the copy for probate and she knows the son with get 10 % of the estate and the minor 60,000.Jake Smith
I am the Grandson of ***** ***** who recently passed away. I hereby consent to a copy of the Will of ***** ***** dated August 22, 2007 being admitted into Probate. Jake will receive 10% of the estate.What else has to be disclosed. Do I have to tell them about intestacy. There is a good chance the will could be accepted. Do I want an estate lawyer or a lawyer who specializes in probate law. Thanks, Bob
Expert:  RayAnswers replied 5 months ago.

You would just need to have them sign a waiver of service when you file your application, the application explains why the proiginal is lost or otherwise unavaialble here.

Expert:  RayAnswers replied 5 months ago.

Waiver of service forms, have heirs sign and you file with

Surrogate Court.