In my blog last week I discussed a question I have heard often enough in my practice. “What if I can’t find the original will”, meaning “can we probate a copy”? I explained last week that in the normal case in New Jersey there is no need for a judge to be involved unless there is a dispute or the original will cannot be located.
As I said last week, the law presumes that if the original cannot be located then the testator (the person who executed the will) intentionally destroyed it because it no longer represented his/her wishes. But, what if that isn’t what really happened? What if the will was simply misplaced?
In that case a copy of the will can be admitted to probate but not in the simple administrative way of scheduling an appointment at the Surrogate’s office. A judge must review the circumstances and decide whether it is likely that the testator destroyed the will or that it was simply lost.
The Executor named in the will must file a complaint asking the probate judge to issue an order permitting the probate of a copy. In support of the application, the proposed Executor must explain what efforts he/she made to locate the will. It is helpful to explain what is known about where the will was kept and the last time anyone saw it. For example, the testator may have moved his/her residence and boxes of documents as a result might have been misplaced or destroyed. All the details that are known about the last location of the original will and the efforts made to locate it are disclosed to the judge in writing by way of a certification.
Once a copy of the will is admitted the probate process is the same as in any other case in which the original will is probated – that is to say that the judge does not remain involved in the process unless there is a dispute.
Another option is to proceed without the will in accordance with intestacy laws. When someone dies without a will, New Jersey law establishes who has the right to serve as administrator (the equivalent of an executor under the will) and who is entitled to receive the probate assets (the assets that would have passed by way of the will). There are pros and cons to this approach.
The first question is whether under the intestacy laws the same or a different outcome will result as far as who receives the assets. If the answer is the same then filing an application for administration may avoid the legal expense of filing an application to probate a copy of the will. There is, however, another potential cost – the requirement to post a bond.
A bond is issued by a surety company and protects against the possibility that the executor or administrator does not distribute the assets to the persons who are entitled to them. The cost of the bond depends on the size of the estate and can be several thousand dollars or more. Most wills waive the requirement of a bond since it costs the estate and trusted family members are usually designated as executor. Most Surrogates, however, require an administrator to post a bond in every instance except when the administrator is the surviving spouse.
So from a cost standpoint the question is which is more costly – the legal expenses of going to court or the cost of a bond.