• New Jersey Estate Litigation
  • Overview of New Jersey estate litigation
  • The New Jersey probate process
• Finding a New Jersey Estate Litigation Lawyer
  • Choosing a New Jersey estate litigation attorney
  • Consult a New Jersey estate litigation lawyer about your case today
• Contesting a Will in New Jersey
  • Who can contest a will in New Jersey
  • Grounds for contesting a will in New Jersey
  • Evidence in a will contest
  • How to contest a will in New Jersey
  • Deadlines for starting a will contest
  • The effect of “No Contest” clauses
• Removing or Suing the Executor of a New Jersey Estate
  • Grounds for removing an executor or administrator
  • How to request the removal of an executor or administrator
  • Effect of the removal of an executor or administrator
  • Suing an executor or administrator for breach of fiduciary duty
• Other Types of Estate Litigation in New Jersey
  • Financial power of attorney abuse
  • Trustee abuse and other trust-related disputes
  • Disputes regarding pre-death gifts and beneficiary designations
  • Contract to make a will (promised inheritances)
  • Disputes among co-fiduciaries
• FAQs About New Jersey Estate Litigation

Overview of New Jersey estate litigation

“Estate litigation” generally refers to legal disputes over the assets of a person who has died (called the “decedent”). If the decedent didn’t have an estate plan upon their death, the risk for disputes is often greater than if they had an estate plan.

A well-crafted estate plan can make it faster, easier, and less expensive to wind up a person’s estate upon their death. Estate plans can also be designed in a way that helps deter disputes. Unfortunately, it’s not always possible to prevent disputes entirely. Such disputes may involve the validity of:

• The last will and testament (or simply a “will”)
• One or more trusts
• Durable financial powers of attorney

Conflicts can also arise due to the conduct of a fiduciary. A “fiduciary” is a person with a legal obligation to act in the best interests of someone else. Examples include an executor, administrator, financial agent, or trustee.

Not all estate-related disputes occur after death. In fact, it’s possible for an estate-related dispute to arise:

• before a person has died, such as when there’s financial power of attorney abuse;
• after death during the probate process, such as when there’s a will contest; or
• even after probate, such as when there are claims related to a breach of fiduciary duty or trust administration.

While each dispute is unique, all estate litigation matters require following strict legal procedures. There are also deadlines for filing most types of lawsuits. As a result, it’s critical to consult a lawyer as soon as possible.

For more information about challenging a will, see Chapter 3: Contesting a Will in New Jersey.

For more information about disputes regarding the executor of an estate, see Chapter 4: Removing or Suing the Executor of a New Jersey Estate.

For more information about other types of disputes, see Chapter 5: Other Types of Estate Litigation in New Jersey.

The New Jersey probate process

Many estate-related disputes arise during the probate process. “Probate” is the court-supervised process of administering a decedent’s estate. The Surrogate Court in the county in which the decedent was living at the time of death is responsible for overseeing this process.

If there’s a will, the executor named in the will generally starts the probate process by bringing the original will to the Surrogate Court. The court will then verify that the will is valid. This may require calling upon the witnesses who signed the will unless the will is “self-proving.”

A “self-proving” will has a notarized self-proving affidavit attached to it. When a will is self-proving, the court will presume the will is valid.

Once the will is verified, the court will formally appoint the executor. The executor will be responsible for administering the decedent’s estate, including:

• Gathering assets
• Paying debts and taxes
• Distributing assets to heirs

During this process, the executor must keep careful records of all assets coming in and going out of the estate. Before the court will officially end the probate process, the executor must submit an accounting of the estate.

If there’s no will, or the executor named in the will isn’t available to serve, the court may appoint someone else to wind up the decedent’s estate. This person is called an “administrator” and has the same duties as an executor. If a spouse or domestic partner is available, they will often serve as the administrator.

The probate process tends to be longer and more expensive for larger estates. However, even smaller estates can present challenges. Interested parties may challenge the validity of the will, the appointment of the executor or administrator, or how the executor or administrator administers the estate. Disputes can also still arise after the probate process has ended, such as claims involving trust administration or a breach of fiduciary duty.

Finding a New Jersey Estate Litigation Lawyer

While any type of legal dispute is unpleasant, estate-related disputes can be especially stressful and emotional. Under these circumstances, getting the help of an experienced lawyer is one of the most important steps you can take to increase your chances of a successful outcome. In particular, an attorney will:

• clarify your rights and options
• handle communications with all parties on your behalf
• identify and gather evidence
• formulate legal strategies
• serve as your advocate
• ensure compliance with all legal procedures and requirements

To avoid missteps that may harm your case, you should consult a New Jersey estate litigation lawyer as soon as a dispute arises.

Choosing a New Jersey estate litigation attorney

The lawyer you choose will be working with you closely and can have a big impact on the outcome of your case. So when hiring an attorney, it’s important to make your decision carefully.

Any lawyer you choose should have experience and knowledge in New Jersey estate litigation. Like any other type of law, estate litigation presents unique challenges. A lawyer experienced in this type of litigation will be more likely to have an understanding of relevant laws and procedures, which means they’ll be able to better identify issues and build the strongest case possible.

It’s also a good idea to choose an attorney that’s comfortable for you to work with. Estate litigation can be deeply personal, and you may need to discuss private issues with your lawyer. A lawyer who listens to you carefully and proactively communicates can help alleviate some of the stress.

To find out if a lawyer is a good fit for you, the first step is getting a consultation. Many estate litigation lawyers offer a brief initial consultation free of charge. During this consultation, you’ll have a conversation with the lawyer about your situation and how they may be able to help. You can also use this consultation as an opportunity to learn more about the attorney’s experience and qualifications.

Depending on the type of matter, an estate litigation lawyer may take a case on a contingency basis. When an attorney works on contingency, the client doesn’t pay their legal fees upfront. Instead, the lawyer will only get paid if they win a verdict or settlement. You can ask about a lawyer’s fee structure during your initial consultation. Before hiring a lawyer, they should also provide you information about their legal fees and expenses in writing.

Consult a New Jersey estate litigation lawyer about your case today

At Rosenblum Law, our experienced estate litigation lawyers understand just how stressful estate disputes can be for everyone involved. Such disputes often involve family members and occur at an emotionally difficult time. Under these circumstances, it’s important to get the guidance of a lawyer who can guide and support you with sensitivity and discretion.

If you’re facing a dispute in New Jersey involving a will, trust, power of attorney, or another aspect of an estate plan, our team can review the details of your case and work with you to identify all your options. If we’re able to take your case, we’ll also manage the entire legal process on your behalf and fight for the best possible outcome.

For a free case consultation, call us today at 888-235-9021 or click here to send us a message.

Contesting a Will in New Jersey

New Jersey law generally gives every adult of sound mind the right to create a will and dispose of their property as they wish. The opinions of family, friends, or others are irrelevant. This means that New Jersey courts are usually reluctant to overturn a will.

Still, challenging (or “contesting”) a will is sometimes possible. However, only certain individuals have the right to contest a will. They must also have a valid reason to challenge the will and follow strict procedures for initiating the will contest.

Below is a summary of who can contest a will in New Jersey, possible grounds for will contests, and will contest procedures. If a will contest is successful, all or part of the will may be invalidated by the court.

Who can contest a will in New Jersey

To challenge a will, you must have “legal standing.” This means you must have a sufficient interest in the matter. Those with legal standing in a will contest generally include:

• Beneficiaries under the current will
• Beneficiaries under a previous will
• Individuals who would inherit under intestacy laws if no will existed

New Jersey’s intestacy laws are set forth under New Jersey Statutes Annotated (N.J.S.A.) § 3B:5-1 et. seq. Under these laws, if a decedent doesn’t have a will, the decedent’s closest living relatives will generally inherit the estate.

Note that if the decedent doesn’t have a surviving spouse, children, or other close relatives, it’s possible for distant relatives to have the right to inherit under intestacy laws. This means such individuals would generally have legal standing to challenge a will.

Grounds for contesting a will in New Jersey

Family members are sometimes dissatisfied with their inheritances. However, just being unhappy with an inheritance is not a valid reason to contest a will. Instead, there must be evidence that the person making the will (called the “testator”) didn’t have the requisite mental capacity or intent at the time they made their will or that the will is otherwise invalid under New Jersey law.

Examples of grounds for contesting a will in New Jersey include:

• Undue influence, duress, or coercion
• Lack of mental capacity
• Fraud
• Forgery Improper execution

A surviving spouse who has been disinherited under a will may also be able to file a claim to recover an “elective share” of the estate under New Jersey law. The sections below provide additional details about each of these grounds for challenging a will.

Undue influence, duress, or coercion

New Jersey courts have defined “undue influence” as “mental, moral, or physical exertion” that violates the testator’s free will. When a testator is the victim of undue influence, someone has manipulated the testator to convince them to make or change their will in a way they otherwise would not have.

Whether influence is “undue” will depend on the facts of each case. Simply favoring one beneficiary over another does not necessarily mean the favored beneficiary did anything wrong.

When someone challenges a will based on undue influence, they must generally present sufficient evidence that a beneficiary abused their trust or power. This can be difficult to do. However, New Jersey courts will presume undue influence if:

• a confidential relationship existed between the testator and the person accused of exerting undue influence, and
• there were suspicious circumstances.

A “confidential relationship” is when the testator trusts and relies on another due to weakness or other dependence. In other words, the other party is in a position of power and dominance over the testator, making the testator vulnerable to manipulation. Examples of such relationships include:

• An elderly person and their caretaker
• An attorney and client
• A guardian and ward

“Suspicious circumstances” are situations that suggest that there might be overreaching in the relationship. For example, there might be a significant change in the estate plan, unusual distributions, isolation of the testator, or major changes to the will just before death.

If the challenger of a will presents evidence of both a confidential relationship and suspicious circumstances, the person accused of undue influence must then show there was no undue influence. If they fail to prove the testator acted voluntarily and understood what they were doing, the court may invalidate the will.

Note that the terms coercion and duress are often used interchangeably with undue influence. Coercion and duress are also a violation of a testator’s free will, but they differ slightly from undue influence.

Undue influence is based on the exploitation of a relationship. Coercion or duress, on the other hand, is when a person threatens or abuses a testator in order to get them to change or make a will to benefit them. If a challenger can prove a will was made as the result of coercion or duress, the will may also be invalidated.

Lack of mental capacity

Under New Jersey law, a testator has to be “of sound mind” when making a will. This is called having “testamentary capacity.” To have testamentary capacity, the testator must generally understand:

• What they’re disposing of in the will
• Who their family members are
• That they’re making a will
• Who will receive their property under the will

New Jersey courts will generally presume a testator had testamentary capacity at the time of making a will. However, if a challenger to a will can prove that the testator was not of sound mind at the time of making the will, all or part of the will may be invalidated. This is often difficult, as the bar for testamentary capacity is rather low.

For example, in the case In the Matter of the Estate of Helen M. Weste, Ms. Weste made a new will in 2002. The 2002 will replaced the will she had previously created in 1994. In Ms. Weste’s new will, she left much of her estate to her neighbor instead of her family members. She also named the neighbor as the executor in her will. A few months after creating the new will, Ms. Weste was diagnosed with dementia and involuntarily admitted to an assisted living community.

Ms. Weste’s niece challenged the 2002 will, claiming that Ms. Weste was the victim of undue influence and didn’t have the capacity to create the will at the time she signed it. However, the court found that there was no evidence that she lacked testamentary capacity at the time the will was created.

In reaching this decision, the court noted Ms. Weste met with her lawyer on her own, presented her own handwritten instructions, and signed the new will. Her lawyer also testified that he believed she had capacity when she met with him.

The court noted that Ms. Weste’s sister and niece visited during this time as well. They both testified that she was still coherent, even though her home wasn’t as neat as usual and Ms. Weste didn’t recognize her niece. She was also still able to live alone and care for herself.

Finding no evidence of mental incapacity or undue influence, the court admitted the 2002 will to probate and appointed the neighbor as executor. This decision was affirmed on appeal.

As this case shows, proving a lack of testamentary capacity can be challenging. To prevail, the person contesting the will must conduct thorough investigations and gather a great deal of evidence.

Note that it may be possible to invalidate a will for lack of mental capacity even if the testator is still living. However, this is only generally possible if a court has deemed the testator legally unable to manage their own affairs due to mental deficiency or illness. This is called “incapacitation.”

If a person who has been deemed legally incapacitated creates or changes their will, a challenger may ask a court to invalidate it. Such a will usually indicates abuse, since the testator likely doesn’t have the ability to understand the contents of a will.

Fraud

Fraud relating to a will is when someone makes a misrepresentation to the testator, causing the testator to make or change their will in a way that benefits that person. In other words, fraud requires three things:

• A misrepresentation, such as a false statement or failure to disclose important facts
• Making or changing a will
• A benefit to the person who made the misrepresentation

Fraud can come in many forms. For example, it would be fraud if a beneficiary lies to the testator that another beneficiary has died, causing the testator to leave additional assets to the beneficiary who lied.

Situations involving fraud also often involve undue influence or lack of mental capacity, but this isn’t always the case. To prove fraud occurred, an attorney can help collect evidence such as witness testimony and correspondence.

Forgery

If someone is alleging forgery, they’re claiming that the testator did not actually make or sign the will. Since New Jersey law requires two people to witness the making of a will, such cases are rare.

To prove or challenge a testator’s signature, the parties may need to hire a handwriting expert. They may also compare the will signature to checks, contracts, correspondence, and other documents with the testator’s signature. As in other types of will contests, other evidence around the making of the will may be helpful as well, including witness testimony and correspondence.

Improper execution

Under N.J.S.A. § 3B:3-1 et. al., in New Jersey a testator must be 18 or older and of sound mind at the time of making the will. To be valid, a will must also be:

• in writing (not audio, video, or digital);
• signed by the testator or by someone else in their conscious presence and at their direction; and
• signed by at least two witnesses who saw the testator sign the will.

As part of the probate process, witnesses will have to appear to prove the will unless the will is “self-proving.” For a will to be “self-proving,” it must have a notarized self-proving affidavit attached.

A will that doesn’t meet the requirements above generally isn’t valid, unless it’s a holographic will. A “holographic will” is one that is handwritten and signed by the testator. While the ease of creating a holographic will may be tempting, its validity can be more easily challenged compared to a formal will.

Spouse’s “elective share”

In New Jersey, adults generally have the right to distribute their assets upon their death as they see fit. This means they can usually disinherit family members that would otherwise inherit under New Jersey intestacy laws. The only exception is the testator’s surviving spouse or domestic partner.

Under N.J.S.A. § 3B:8-1, in New Jersey a surviving spouse or domestic partner is entitled to an “elective share” of one-third of the estate so long as they were living with the testator at the time of the testator’s death. If a will doesn’t leave at least this amount to a spouse, the spouse may file a claim to receive it.

Evidence in a will contest

Successfully invalidating all or part of a will isn’t easy. It will require a great deal of evidence. Examples of common evidence in a will contest include:

• Witness testimony (such as from the drafter of the will, individuals present during signing, friends or family with knowledge of testator’s intentions or state of mind, or medical professionals providing care to testator)
• Expert testimony (such as medical experts or handwriting experts)
• Medical records of the testator
• Emails, texts, and other written communications
• Other documents/evidence (such as the testator’s diary or journal, suspicious bank transfers, etc)

Whether you’re challenging or defending a will, a New Jersey estate litigation attorney can help identify and gather the types of evidence needed to build the strongest case possible.

How to contest a will in New Jersey

If you’re involved in a will contest, it’s important to start gathering evidence as soon as possible. Then contact a New Jersey estate litigation lawyer. Your lawyer will be able evaluate your case, identify your options, and guide you through the process.

In general, a will contest is initiated in the courts located in the county in which the testator resided and their estate is being administered. There are two ways to start a will contest in New Jersey.

First, if a will is not yet admitted to probate, a challenger can file a “Caveat” in the county Surrogate’s Court overseeing the probate process. A “Caveat” is a statement signed by someone who contests the probate of a will. It is a simple document, and it doesn’t need to include a reason for the challenge.

Under New Jersey Court Rule 4:82, the Surrogate’s Court can’t act with respect to a will if a Caveat has been filed. In other words, once a Caveat is filed, it stops the probate process. To get the will admitted to probate, the executor (or other proponent of the will) must file a legal action in the Superior Court, Chancery Division, Probate Part.

However, under N.J.S.A. § 3B:3-22, a will can be admitted to probate as soon as 10 days after the date of death. Given this small window, a challenger may not know about the probate process quickly enough to find an estate litigation lawyer and file a Caveat.

A challenger may also not realize there’s a problem with the will until later on in the process. Under New Jersey Court Rule 4:80-6, an executor has 60 days after a will is admitted to probate to mail a notice of probate to each beneficiary and next of kin. The executor isn’t required to include a copy of the will with these notices. Instead, the executor is only required to provide a copy of the will upon request.

These procedures mean interested parties may not see the will until well after after it has been admitted to probate. In this case, they will likely miss the opportunity to file a Caveat.

If a challenger can no longer file a Caveat, it’s still possible to contest a will after it has already been admitted to probate. The challenger can do this by filing a complaint directly in the Superior Court, Chancery Division, Probate Part.

Note that a will generally can’t be challenged before the testator has died. Courts usually take the position that it’s possible for the will to be revised while a person is still living, so it would be a waste of time and resources to litigate prematurely. A possible exception would be a will created by a person who has been deemed legally incapacitated as described in the section above titled Grounds for contesting a will in New Jersey — Lack of mental capacity.

Deadlines for starting a will contest

Like other legal claims, will contests must be filed by a legal deadline set forth in a law called the “statute of limitations.” Under New Jersey Court Rule 4:85-1:

• New Jersey residents generally have up to four months after the executor’s appointment to start a will contest.
• Out-of-state residents generally have up to six months after the executor’s appointment to start a will contest.

As noted in the section above, under New Jersey Court Rule 4:80-6, an executor has 60 days after a will is admitted to probate to mail a notice of probate to each beneficiary and next of kin. If the executor waits the full 60 days to provide notice, the above windows for filing a will contest may be even smaller.

However, there are exceptions to these deadlines. For example, the deadline may be extended if the executor didn’t provide any notice of probate to the required parties, or if there’s evidence of fraud or other misconduct during the probate process.

The above deadlines also don’t apply to claims relating to the administration of an estate. For example, if a beneficiary doesn’t believe an executor has given them the property they’re entitled to under the will, they may be able to file a complaint outside of the 4-6 month window.

Given the possible short deadlines, if you suspect there’s an issue with a will, you’ll need to move quickly and consult a New Jersey estate litigation lawyer as soon as possible. Your lawyer can confirm the specific deadlines relevant to your case. If you miss these deadlines, you may no longer be able to pursue your claim — no matter how strong your case would have been.

The effect of “No Contest” clauses

If you’re involved in a will dispute, it’s worth confirming whether the will includes a “No Contest” or “In Terrorem” clause. This type of clause provides that if someone challenges the validity of the will, they won’t receive any inheritance at all.

Under N.J.S.A. § 3B:3-47, “No Contest” clauses aren’t enforceable so long as there’s “probable cause” for the challenge. Unfortunately, there are no clear rules on how much evidence is needed for there to be “probable cause.” However, if a challenger doesn’t provide any evidence at all to support their claims, probable cause wouldn’t exist.

If there’s no probable cause, simply filing a “Caveat” could trigger a “No Contest” clause and result in the challenger losing their inheritance. So although filing a Caveat can be a simple way to stop probate, it’s not a decision that should be taken lightly or as a way to delay probate. This is especially true if the challenger has not seen a copy of the will and whether it includes a “No Contest” clause.

“No Contest” clauses are yet another reason to get the help of a New Jersey estate litigation lawyer as soon as possible. A lawyer can evaluate your case, including the possible impact of a “No Contest” clause.

Removing or Suing the Executor of a New Jersey Estate

The person named in a will to administer the estate is called the “executor.” Once the Surrogate’s Court authenticates the will and formally appoints the executor, the executor will be responsible for winding up the estate, including:

• gathering and inventorying assets
• paying debts and liabilities
• filing tax returns and paying taxes
• distributing assets according to the provisions of the will

If there’s no will or the named executor isn’t available to serve, the court may appoint an “administrator.” The administrator has the same rights and duties as an executor. The executor or administrator is also called the “personal representative” of the estate.

Under N.J.S.A. § 3B:10-23, the personal representative must settle and distribute an estate in accordance with any valid will and applicable law as quickly and efficiently as possible. While doing so, they must take into account the best interests of the estate and beneficiaries of the estate.

While probate is a court-supervised process, the Surrogate’s Court generally doesn’t get involved in exactly how a personal representative performs their duties. The executor doesn’t need permission to handle most parts of the estate. The court will usually only interfere with the administration of the estate if there’s an alleged breach of duty.

If a personal representative breaches their duty, they may be removed. Anyone with a sufficient interest in the matter can request removal. A court can also initiate removal. Personal representatives can be sued in their individual capacity for breach of fiduciary duty as well.

Grounds for removing an executor or administrator

Sometimes, a beneficiary may disagree with how a personal representative is handling an estate. However, this usually isn’t enough to request removal of the personal representative. Nor is a perceived conflict of interest due to the personal representative also being a beneficiary under the will.

Like a will contest, a personal representative may only be removed if there are valid grounds for doing so. Specific grounds for removal are outlined under N.J.S.A. § 3B:14-21. This statute provides that a personal representative can be removed for:

• Neglect or refusal to file an inventory, create an accounting, or secure assets
• Neglect or refusal to obey a court order or judgment
• Embezzlement, waste, or misapplication of estate assets or other abuse of trust or confidence
• Inability or refusal to perform their duties
• Neglect or refusal to join any co-fiduciaries in the administration of the estate

If there’s evidence of any of these problems, the beneficiaries can request the removal of the personal representative as described in the section below titled How to request the removal of an executor or administrator.

Note that the court doesn’t have to wait until actual misconduct or damage has occurred before removing a personal representative. They can do so immediately, so long as removal is necessary to protect against possible future harm.

How to request the removal of an executor or administrator

If a beneficiary believes an executor is mishandling the administration of an estate, they can start the removal process by filing a formal complaint in the Superior Court of New Jersey. The complaint must also include:

• A certification by one or more beneficiaries regarding the personal representative’s alleged wrongdoing.
• An “Order to Show Cause,” which is signed by the judge and directs the personal representative to file a response to the Complaint and appear in court.

To successfully remove a personal representative, a beneficiary has to show clear evidence that there’s a serious conflict of interest or that there are other reasons to disqualify the personal representative as described above. In other words, there must be reason to believe that the personal representative’s actions could harm the estate or the beneficiaries’ interests.

The court will then review the evidence and determine whether these claims are true. If so, the court may remove the personal representative.

Removing an executor is not a decision that New Jersey courts take lightly. To successfully remove an executor, the beneficiary will have to conduct investigations and present strong evidence. This means it’s critical to get the help of a New Jersey estate litigation lawyer as quickly as possible.

Effect of the removal of an executor or administrator

If a personal representative is removed or released from service, they will generally no longer have any rights or duties of an executor or administrator. However, they will still have to provide an accounting of their time in service. They must also transfer the estate’s assets to the successor personal representative.

A personal representative who has been removed may still be paid a commission for their service if the court considers it reasonable and fair. However, in a complaint seeking removal of a personal representative, the beneficiary can request the commission be reduced or even eliminated.

Note that a former personal representative can also still be personally liable for failure to deliver property and any neglect, breach of trust, or other harms committed during their service as described in the section below. They may also be responsible for costs and expenses incurred in the process of removing them, especially in cases of willful misconduct.

Suing an executor or administrator for breach of fiduciary duty

A “fiduciary” is a person with a legal obligation to act in the best interests of someone else. The executor or administrator of an estate is considered a fiduciary, as they must act in the best interests of the estate and the beneficiaries.

In general, personal representatives must act honestly, responsibly, and effectively in carrying out their duties. If they act in good faith and use reasonable caution, it can be difficult to challenge their decisions. However, certain harmful conduct is considered a breach of fiduciary duty.

Possible breaches of fiduciary duty include:

• Embezzlement of the estate’s assets
• Failure to follow the terms of the will, such as fraudulently distributing assets to someone other than the correct beneficiary or not distributing assets at all
• Refusing to communicate with beneficiaries
• Failure to safeguard the assets, resulting in loss to the beneficiaries
• Improper valuation of estate assets

While a personal representative generally may not profit from their position, they are usually entitled to receive compensation for their service. A testator can specify the compensation payable to the estate’s executor in the will. Otherwise, the executor or administrator is entitled to the statutory commissions outlined under N.J.S.A. §§ 3B:18-13 and 3B:18-14.

If a personal representative breaches their fiduciary duties and harms the estate or the beneficiaries, they may be held personally responsible in a lawsuit. Breach of fiduciary duty claims must generally be filed:

• within six years for economic losses, or
• within two years for physical or emotional harm.

There are exceptions to these deadliness, such as when a fiduciary’s behavior is especially egregious. In these cases, a court may be willing to extend the statute of limitations.

For example, in the case In the Matter of the Estate of Joan McFadden, the decedent made a will in 1998, leaving specific assets to three charitable organizations and two friends. The will left the remainder of the estate in equal parts to 13 nieces and nephews. The will also named one nephew and one niece as co-executors of the estate.

The decedent died in 2002, and the niece renounced her appointment as co-executor in 2003. The nephew then probated the will. However, he didn’t notify any other beneficiaries of the will’s existence or the probate process as required by law.

The other beneficiaries didn’t find out about the will until 2011. Upon discovering the will, they filed a lawsuit alleging breach of fiduciary duty and other misconduct.

The nephew argued that the lawsuit should be thrown out because it was not filed within six years as required by the statute of limitations. The court disagreed. Because the nephew intentionally concealed the will, fairness required that the six-year period begin in 2011, when the other beneficiaries discovered the will. The case was allowed to proceed, and the nephew was ultimately ordered to repay assets to the estate.

Note that under N.J.S.A. § 3B:14-40, no legal actions can be filed against a personal representative until six months after their appointment. This waiting period is designed to give the personal representative time to gather information about the estate, calculate its value, and determine which liabilities and debts must be paid.

Other Types of Estate Litigation in New Jersey

Disputes involving wills and the conduct of personal representatives are just two types of estate litigation. There are also many other potential disputes that can arise, such as disputes regarding:

• Financial power of attorney abuse
• Trust administration
• Pre-death gifts and beneficiary designations
• Promised inheritances
• Conduct of co-fiduciaries

Below are brief summaries of each of these types of disputes. Like will contests, prevailing in these disputes will require thorough investigations, strong evidence, and a deep understanding of applicable law and legal procedures. If you’re involved in any type of estate litigation, you should consult an experienced estate litigation lawyer as early in the process as possible.

Financial power of attorney abuse

A financial power of attorney is a legal document that allows someone (called an “agent” or “attorney-in-fact”) to act on someone else’s behalf with respect to financial and business matters. The agent is a fiduciary, which means they’re obligated to act in the best interests of the person making the power of attorney (called the “principal”).

A financial power of attorney is often part of a comprehensive estate plan, as it helps prepare for the potential incapacitation of the principal. This document can grant specific or broad powers to the agent. Powers granted under a financial power of attorney may include the authorization to handle, among other things:

• Real estate transactions
• Banking, securities, and other financial transactions
• Government benefits
• Tax matters
• Business affairs

When a financial power of attorney is part of an estate plan, it often grants broad powers to the agent. This is because it’s not easy to predict all the types of matters that an agent may need to handle if the principal becomes incapacitated. By giving broad authority to the agent, the agent will be able to act more effectively and efficiently.

Once executed, a financial power of attorney also usually becomes effective immediately. It then generally only expires upon the principal’s death, unless the principal destroys all originals or revokes it in writing.

The broad authorization and immediate effectiveness of many financial powers of attorney mean that it’s important to choose an agent that the principal trusts completely. A bad actor may abuse the powers given to them to profit or otherwise fail to act in the principal’s best interests.

If an agent abuses its power while the principal is incapacitated, it may be possible to ask a court to remove the agent. Like an executor, a financial agent can be sued personally for breach of fiduciary duty and other misconduct as well.

A financial power of attorney may also be challenged if it was improperly obtained in the first place or doesn’t meet legal requirements for validity. Like a will, a financial power of attorney is only valid if the principal was of sound mind and created the power of attorney willingly.

If a financial power of attorney was created by someone who was mentally ill or otherwise incapacitated, the document is not valid. It’s also not valid if it was obtained due to undue influence, duress, coercion, or fraud.

Note that challenges involving financial powers of attorney can occur before or after the principal’s death. Often, family members of the principal don’t realize abuse has occurred until after the principal has died. Generally, anyone with a sufficient interest in the matter can start legal proceedings to challenge a financial power of attorney or the conduct of a financial agent.

Trustee abuse and other trust-related disputes

Some estate plans include one or more trusts. A “trust” is a legal arrangement in which a trustor transfers assets to a trustee to hold and manage for the benefit of one or more beneficiaries.

A trust that’s established while the trustor is still living is called a “living trust” or “inter vivos trust.” A living trust is created by a trust document or trust agreement. This document’s provisions also determine how the trust assets are held, managed, and distributed.

A trust created upon the trustor’s death through their will is called a “testamentary trust.” A testamentary trust’s provisions are included in the will.

Several types of disputes can arise relating to trusts. There may be lawsuits to modify the trust, interpret the trust provisions, or terminate the trust.

In addition, like other fiduciaries, a trustee may be removed and/or sued in their personal capacity for breach of fiduciary duty or other misconduct. This may occur if, for example, a trustee is using trust funds for an improper purpose or refusing to distribute assets according to the trust document.

Under N.J.S.A. § 3B:31-74, a beneficiary of a trust generally only has six months from receiving a report adequately disclosing information about a potential claim to bring a claim for breach of fiduciary duty by a trustee. Whether a report is “adequate” depends on the circumstances.

When the above deadline doesn’t apply, the statute of limitations is five years from the earliest of:

• The removal, resignation, or death of the trustee
• The termination of the beneficiary’s interest in the trust
• The termination of the trust

New Jersey law also provides that the five-year window doesn’t start running until the beneficiary:

• Attains age of majority
• Knows of the existence of the trust
• Has knowledge that he or she is or was a beneficiary of the trust

Disputes regarding pre-death gifts and beneficiary designations

People often transfer assets to others as gifts during their lifetime. They also often name certain beneficiaries on “non-probate assets.”

“Non-probate assets” refer to certain assets that don’t pass through a will or according New Jersey intestacy laws. Instead, they transfer directly to the designated beneficiary upon the death of the owner of such assets. Examples of common non-probate assets include:

• Certain financial accounts
• Retirement accounts
• Life insurance proceeds
• Jointly held property

Like any other part of an estate, disputes may arise regarding pre-death gifts or beneficiary designations on non-probate assets. However, as with wills, courts are generally reluctant to overturn gifts or beneficiary designations. As a result, if someone is challenging a pre-death gift or beneficiary designation, they will need to present strong evidence of misconduct. These disputes often involve one or more of the grounds for challenging a will, such as undue influence or lack of capacity.

Contract to make a will

Sometimes, people make promises about assets they will leave to loved ones upon their death. If a person breaks their promises, there’s usually nothing the promisee can do about it. However, in some cases, a promised inheritance can be legally enforceable.

A common example is when a couple gets married, with each spouse bringing children from prior relationships into the marriage. Each spouse then creates a will leaving everything to the surviving spouse, with the understanding that after the second spouse’s death, all of the assets will go to all of their children together.

In this scenario, the couple is assuming that the surviving spouse won’t change their will to disinherit the other spouse’s biological children. However, this is not guaranteed, and generally, an implied promise alone won’t be enforceable. Under N.J.S.A. § 3B:1-4, such an understanding may only be enforceable if the contract is established by:

• Provisions of the will stating the material provisions of the contract
• An express reference in a will to the contract and other evidence proving the terms of that contract
• A separate writing signed by the testator that evidences the contract

Disputes among co-fiduciaries

When two or more people are serving as co-fiduciaries (such as co-executors of a will or co-trustees of a trust), they must make decisions together. This increases the possibility of disagreements, which in turn makes litigation more likely. This is why it’s generally not recommended to appoint co-fiduciaries.

If co-fiduciaries are appointed, they must act in concert. For example, one co-executor is not allowed to make decisions about an estate without informing and getting the approval of the other co-executor(s). Doing so would be a violation of their fiduciary duties, and they may be removed and/or be held personally liable in a lawsuit. Their decision may also be reversed.

FAQs About New Jersey Estate Litigation

Below are general answers to some common questions about New Jersey estate litigation. However, each case should be evaluated based on its unique facts and circumstances. If you’re involved in a dispute regarding an estate, you should consult an experienced New Jersey estate litigation lawyer right away. Your lawyer will be able to discuss any questions specific to your situation.