By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Probate & Estate Administration Attorney
A colleague recently presented an interesting question. By way of background, a person was named the Trustee of a Revocable Living Trust and the Executor of the decedent’s Last Will and Testament.
The documents were prepared for the decedent when she lived in Virginia many years ago but retired to New Jersey and resided in New Jersey for approximately a year and a half prior to his death. The original Will and Trust documents could not be located and an Order to Show Cause was filed to probate a photocopy of the Last Will with directions to distribute the Estate in accordance with the terms of the trust. Before the hearing date, the original Will and Trust were located and the action was dismissed. The Will has now been submitted for probate in New Jersey.
The question raised is as follows:
- While the Notice of Probate must be served upon the decedent’s next-of-kin do the beneficiaries under the Trust also need to be noticed of the probate proceeding?
The reason for the question is because the Trust has individual beneficiaries as well as charitable beneficiaries. Due to the fact that an Order to Show Cause was originally filed and all beneficiaries, both individual and charitable under the Trust, were parties in interest, they were all put on notice along with the Attorney General’s office and given copies of the Will and Trust. So they all have actual notice.
Because nowhere in the statute does it state that notice of the existence of the Trust needs to be given again to the Attorney General’s office the attorney is trying to confirm whether the Attorney General’s office gets involved in reviewing accountings etc. for the charitable beneficiaries of the Trust much like they would if they were specifically named in the Will.
My thought(s) is that the executor is not required, per se, to give a second notice of the trust to the beneficiaries, but if he DOES inform the beneficiaries, then the Statute of Limitations to contest the validity of the Trust is reduced from three years to four months (NJ residents beneficiaries) or 6 months (non-NJ resident beneficiaries). Most attorneys make notice to beneficiaries a regular practice, including the Attorney General when charitable beneficiaries are listed.
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