What If I Can’t Find the Original Will – Part 1

We all know the statistics.  110,000 deaths attributed to Covid-19 and climbing.  Our office has received more calls in the last 3 months regarding the need for estate administration than at any time that I can recall in the past 25 years.  In many instances the decedent (the person who died) had no will or at least none could be located.  In other cases, a copy has been found but not the original.

As I have written in the past, New Jersey has an easy probate process when the original will exists.  An application for probate is presented by the proposed executor with the original will to the county Surrogate without the need to appear before a judge.  This is called common probate.

Without the original will, however, estate administration involves an application by a proposed administrator and usually a bond is needed.  A surety company will issue the bond to protect the heirs and creditors should the administrator fail to carry out his/her duties. Depending on the size of the estate, this bond can be several thousand to tens of thousands of dollars.

If a copy of the will has been found but not the original, and there is no belief or evidence that the decedent destroyed the original intentionally, then probate can still be accomplished but additional legal papers must be filed explaining to a judge that “we looked everywhere and couldn’t find the original but we don’t believe it was intentionally destroyed”.  If the judge is satisfied, then the copy can be admitted to probate and the named executor can carry on the role of estate administration.  A hearing before the judge may or may not be necessary.

In many cases, however, the probate estate is small.  This may be because most assets were placed in a trust by the decedent while alive.  It also may be the case that many assets are nonprobate ones – either jointly owned with right of survivorship or having specific payable on death designations.  These methods of distribution override the instructions in a will.

So, what can you do if there is only a small estate and no will or only a copy can be found?  Is there a less expensive option?  I’ll answer that question next week.