By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Probate Litigation Attorney
The short answer is “yes” and “no”. Sorry about the answer, but here’s why. There is nothing in the estate laws that require an executor to send a copy of the will to beneficiaries when the will won’t be probated. There are some older cases stating if there is a will that the executor knows of, the executor has a duty to probate the will, but those cases involved valuable assets in the estate. Ellicott v. Chamberlin, Mackin v. Mackin.
Upon request, a court also has the power to “compel discovery as to the existence or whereabouts of any paper purporting to be a will of any decedent who died a resident of the county, which has not been offered for probate, and to require the paper to be lodged with the surrogate of the county for probate.” N.J.S.A. §3B:3-29.
Another option (I’ve done this in the past) is to have the Surrogate’s Office file the will, but not probate it, as long as the executor affirms that there are no assets in the estate. This procedure can be done if the estate is insolvent, but no creditors have attached claims to the estate yet. But there isn’t a duty in the statutes that says you have to do this or notice beneficiaries with the will if it won’t be probated. Yet, it might be a good idea to probate or file the will to make it a public record in case there are any future claims of creditors, or potential beneficiaries are curious.
To discuss your NJ Estate and Probate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at email@example.com. Please ask us about our video conferencing consultations if you are unable to come to our office.