The original copy of a will plays a vital role in ensuring that a person’s wishes regarding the distribution of their assets are carried out after their death. In New Jersey, the probate process requires the original will to be presented to the Surrogate’s Court. If the original document is lost or missing, it can create legal complications and delays in administering the estate. Proper safekeeping and knowing who has the right to possess the will are key factors in avoiding disputes and ensuring a smooth probate process.
If you need assistance with drafting, storing, or locating a will in New Jersey, a knowledgeable wills attorney can help protect your interests. At The Matus Law Group, our experienced team of New Jersey wills attorneys can guide you through the estate planning process, ensuring your documents are secure and your loved ones are protected. Contact us today at (732) 281-0060 for personalized legal support in safeguarding your will and planning for your family’s future.
The Importance of the Original Will in New Jersey Estate Planning
An original will holds significant legal value in estate planning, particularly when it comes to probate. The will serves as a key document that outlines the testator’s wishes regarding asset distribution, guardianship of minors, and other vital decisions after their passing. In New Jersey, specific laws and processes govern how wills are handled, making it crucial for executors and beneficiaries to understand the importance of securing and presenting the original document to the appropriate authorities.
Why the Original Will Is Essential for Probate
In New Jersey, probate courts require the original will to begin the probate process. The Surrogate Court, responsible for overseeing probate proceedings, will only admit an original will unless there is compelling evidence to explain the absence of the original document. The New Jersey Will Registry, managed by the Office of the Secretary of State, allows testators to register their wills, helping executors and beneficiaries locate the original copy when needed. However, this registration is voluntary, and the absence of a registered will does not affect its validity.
Legal Implications of Losing or Destroying a Will
Under New Jersey law, if the original will cannot be located, courts presume it has been revoked. This presumption can only be overcome with clear and convincing evidence that the will was not intentionally destroyed by the testator. For instance, in cases where the original will is lost due to natural disasters, fires, or unintentional mishandling, the executor must provide substantial proof to show the testator’s intent to maintain the will’s validity.
If the original will cannot be produced, beneficiaries and executors may face lengthy legal disputes to prove the existence and validity of a copy. These disputes can delay asset distribution, create conflicts among heirs, and increase legal costs. Executors should, therefore, take proactive measures to safeguard the original document.
Who Should Keep the Will in New Jersey?
The question of who should hold the original copy of a will is crucial in estate planning. In New Jersey, probate courts require the original will to begin the process of distributing a deceased person’s assets. To avoid delays in probate, testators must carefully decide who will safeguard the will and ensure that key individuals know its location.
The Testator’s Responsibility in Safeguarding the Will
In many cases, the testator keeps the original will in a safe location, such as a fireproof safe at home or a safe deposit box at a bank. While this approach ensures the document is secure, it can pose issues if the executor or family members are unaware of its location or if access to the safe deposit box is restricted after death.
If the original will cannot be found, New Jersey courts may presume that the testator revoked it. To avoid this presumption, the testator should inform the executor and other trusted individuals about the location of the will. Some testators also choose to register the will with the New Jersey Will Registry, which provides additional protection by listing the document’s whereabouts.
The Executor’s Role in Keeping the Will
The executor named in the will plays a vital role in safeguarding and presenting the document during probate. In New Jersey, executors are considered “interested persons” under N.J.S.A. 3.B:3-2.1(d), meaning they have the legal right to access information from the New Jersey Will Registry if the will has been registered. This can help executors retrieve the original will if it is not immediately accessible after the testator’s death.
Testators may choose to provide the executor with the original will before their passing to simplify the probate process. However, this arrangement requires trust, as the executor must handle the document responsibly to avoid any risk of loss or damage.
The Attorney’s Role in Will Safekeeping
Many testators choose to store the original will with their estate planning attorney. Attorneys often provide secure storage services for essential legal documents, ensuring the will is preserved and easily accessible when needed. This arrangement offers several advantages:
- Attorneys have systems to track and retrieve original documents.
- They can inform executors and beneficiaries about the document’s location.
- They provide certified copies of the will for legal purposes.
Entrusting the will to an attorney can also reduce the risk of the document being lost or damaged, particularly if the testator has concerns about storing it at home.
Can a Will Be Filed with the New Jersey Surrogate’s Court?
In New Jersey, wills typically go through the Surrogate’s Court for probate after the testator’s death. However, some may wonder if a will can be filed with the court while the testator is still alive to ensure its safekeeping. Although New Jersey law does not provide for pre-death filing of wills with the Surrogate’s Court, there are steps a testator can take to help ensure that the will is properly stored and easily accessible when needed.
Filing the Will After the Testator’s Death
The Surrogate’s Court becomes involved with a will only after the testator has passed away. Once the testator dies, the executor must submit the original will to the Surrogate’s Court in the county where the deceased person resided. The probate process begins when the court validates the will and grants the executor the authority to administer the estate.
New Jersey courts require the original will for probate. If the original cannot be found, it may be presumed that the testator revoked the will, and the estate may be distributed under intestacy laws unless clear and convincing evidence shows otherwise.
The New Jersey Will Registry as an Alternative
While New Jersey does not allow pre-death filing of wills with the Surrogate’s Court, the state offers a Will Registry Program through the Office of the Secretary of State. Established under N.J.S.A. 3.B:3-2.1(d), this program allows testators or their attorneys to register the location of their will for a small fee.
The registry does not store the will itself but keeps basic information about where the original document is held. After the testator’s death, “interested persons”—such as the executor, beneficiaries, or legal representatives—can search the registry to locate the will. This system helps ensure that the will can be found when needed and reduces the risk of it being lost or overlooked.
Limitations of the Surrogate’s Court and Will Registry
The Surrogate’s Court plays a critical role in probating wills and overseeing estate administration, but it does not offer pre-death storage services for wills. The Will Registry Program is a helpful alternative, but it is not mandatory, and not all testators choose to use it.
Because the court requires the original will to initiate probate, testators should ensure that the document is stored securely and that trusted individuals know its location. Common storage options include:
- Safe deposit boxes (with proper access arrangements for the executor)
- Home safes (preferably fireproof and accessible)
- Attorneys’ offices (offering professional storage services)
By using a combination of secure storage and registry services, testators can help prevent delays in probate and minimize disputes over the location of the will.
Who Has the Right to Possess the Original Will After the Testator’s Death?
In New Jersey, determining who has the right to possess the original will after the testator’s death is a critical aspect of estate administration. The original will must be presented to the Surrogate’s Court to initiate the probate process, and the responsibility of safeguarding this document generally falls to the executor. However, family members and other interested parties may also have rights to access the will under specific circumstances.
Role of the Executor in Retrieving the Original Will
The executor named in the will has the primary responsibility to locate, possess, and file the original will with the appropriate Surrogate’s Court. The executor must do so as soon as possible after the testator’s death to begin the probate process.
In New Jersey, the court requires the original will for probate. The executor’s duties include:
- Retrieving the original will from its storage location.
- Filing the will with the Surrogate’s Court in the county where the deceased person lived.
- Carrying out the testator’s instructions as outlined in the will.
The executor is a legally recognized “interested person” under New Jersey law (N.J.S.A. 3.B:3-2.1(d)) and has the right to access the New Jersey Will Registry to locate the document if the testator registered it before their death. The executor’s role in keeping the will secure and presenting it for probate is critical to ensuring that the deceased’s wishes are carried out as intended.
Family Members’ Rights to Access the Will
After the testator’s death, family members have the right to request access to the will from the executor. Once the will is filed with the Surrogate’s Court, it becomes a public record during the probate process, and anyone can request a copy from the court.
However, before the will is filed for probate, only certain individuals—typically beneficiaries or other interested parties—can demand to see the will. Family members who suspect they are named in the will or have a legal interest in the estate can petition the court to compel the executor to produce the will if it has not been presented for probate in a timely manner.
In some cases, family members may be unaware of the existence or location of the will. In such situations, they can contact the New Jersey Will Registry to determine whether the will was registered and to locate the executor or the attorney holding the document.
Legal Procedures When the Will Is Missing
If the original will cannot be found, the situation becomes more complicated. Under New Jersey law, when a will cannot be located, there is a legal presumption that the testator revoked the will. To overcome this presumption, the executor or interested parties must provide clear and convincing evidence that the will was lost or destroyed without the testator’s intent to revoke it.
Steps to take when the original will is missing:
- Search thoroughly for the will in likely storage locations, such as safe deposit boxes, home safes, or the testator’s attorney’s office.
- Contact the Will Registry to check if the will was registered with the state.
- Consult with family members or close friends who may have knowledge of the will’s whereabouts.
- File a petition with the court to admit a copy of the will if the original cannot be found. The court will require supporting evidence, such as testimony from witnesses or the attorney who drafted the will, to validate the copy.
If the court determines that the will was revoked, the estate will be distributed according to New Jersey intestacy laws, which may result in outcomes that do not align with the testator’s wishes.
Secure Your Family’s Future with The Matus Law Group
Properly safeguarding the original copy of a will is essential for ensuring that your final wishes are honored. A thorough understanding of who should keep the original will and taking proactive steps to store it securely can prevent potential delays and disputes during the probate process. Executors, attorneys, and trusted family members all play a vital role in ensuring that the will remains accessible when it’s needed most.
At The Matus Law Group, we are dedicated to helping New Jersey residents with their estate planning needs. Our experienced attorneys can assist you in drafting and securing your will to protect your loved ones and simplify the probate process. Contact us today at (732) 281-0060 to schedule a consultation and gain peace of mind knowing your estate plan is in trusted hands.
| Steps | Details |
|---|---|
| Search for the Will | Check safe deposit boxes, home safes, or the attorney’s office. |
| Check Will Registry | Verify if the will was registered with the state. |
| Consult Family or Friends | Ask relatives or friends for information about the will. |
| File a Court Petition | Request the court to admit a copy of the will with supporting evidence. |
| If Will is Revoked | Estate will follow New Jersey intestacy laws if deemed revoked. |
