Solemn versus Common Probate

It’s a fact of life that people die. As individuals, we have many different personal and spiritual views on the subject. The law, on the other hand, has a rather limited perspective. When someone passes, one of the primary legal issues that arises is the disposition of their worldly possessions. These possessions collectively amount to what we call the deceased person’s “estate” and can include: homes and land, bank accounts, personal effects, vehicles and complex financial interests. The way the estate is distributed is called “administration” of the estate.

If the decedent left a last will and testament (commonly called just a “will”), the first question that arises in New Jersey estate administration is whether it is necessary to probate the will. Probate is a legal process by which a will is validated and titled property (e.g., houses and vehicles) in a persons’ estate are distributed to heirs and creditors. It is generally only necessary if the person’s estate includes titled property (usually real property like a house or vehicles such as cars, trucks or boats).

During the probate process, a court determines how to dispose of (sell) the property if necessary and who should be paid. For example, if the decedent had a mortgage on their home, the bank would have to be paid back before the heirs would receive money from the sale of the home.

In New Jersey, there are two ways that a will can be probated:

• The first method is called “common,” or “short form,” probate. This is a relatively straightforward process where the administrator of the estate fills out a probate application form and sends it into the Surrogates Court in the county where the deceased has passed away. A date is then set by the Court, and the administrator meets with a Surrogates Court representative to review key documents and witnesses including: the will, witnesses to the will, a death certificate, a list of the items, funds and instruments that make up the estate and names and addresses of the relatives and beneficiaries. The “common” probate process is fairly straightforward and is the way most wills are probated. A New Jersey estate attorney can assist with the process and help you streamline in an effort to avoid some of the common headaches inherent in estate administration.

• “Solemn” probate is a lot more complicated. It requires the administrator to put many people on notice — including people not named in the Will who may have a claim to the estate. It is more costly and generally requires the assistance of an attorney. Why would anyone go this route? Well, sometimes the administrator is aware of individuals who are expected to challenge the validity of the will. This situation is called a “Will contest.” In these circumstances, one or more people alleges that the will itself is invalid (e.g., a forgery or made when the deceased person was mentally deficient) or that a bequest (or lack thereof) within the will is unlawful or against public policy.

Solemn probate allows a court to settle all contests once and for all, and allows the heirs and beneficiaries of an estate to go about their business without worrying about future claims. It achieves this goal, in part, by setting a time period by which all contesters must come forward or else lose the right to challenge the will.

If you are an administrator of an estate, an heir or beneficiary, or expect to be shortly, it is prudent to contact a qualified New Jersey estate attorney who can advise of your rights and obligations and assist with you determining whether probate is needed and whether you should proceed by common or solemn probate. For experienced legal guidance in Union or Hunterdon counties, contact Alec Borenstein, Esq., at alec@bmcestateplanning.com or call 908-236-6457 today.