RULE 4:80. Application To Surrogate's Court For Administration

RULE 4:80. Application To Surrogate's Court For Administration

4:80-1. Application

• (a) Contents. Unless a complaint for probate is filed with the Superior Court pursuant to R. 4:83, an application for the probate of a will, for letters testamentary, letters of administration, letters of administration of non-resident estates in which administration has not been sought in the decedent's state of residence, letters of administration with the will annexed, letters of administration ad prosequendum, letters of substitutionary administration and letters of substitutionary administration with the will annexed shall be filed with the Surrogate's Court, stating: (1) the applicant's residence; (2) the name and date of death of the decedent, his or her domicile at date of death and date of the last will, if any, of decedent; (3) the names and addresses of the spouse, heirs, next of kin and other persons, if any, entitled to letters, and their relationships to decedent, and, to the best of the applicant's knowledge and belief, identifying any of them whose names or addresses are unknown and stating further that there are no other heirs and next of kin; (4) the ages of any minor heirs or minor next of kin; and in an application for probate of a will, whether the testator had issue living when the will was made, and whether he or she left any child born or adopted thereafter or any issue of such after-born or adopted child, and the names of after-born or adopted children since the date of the will, or their issue, if any. The applicant shall verify under oath that the statements are true to the best of the applicant's knowledge and belief.
• (b) Certificates, Affidavits Accompanying the Application. Except in an application for substitutionary letters, the application shall be accompanied by a certificate of death or other competent proof thereof, unless for good cause dispensed with; and in all applications where a bond is required of the person applying for letters, the application shall be accompanied by an affidavit of the value of the personal estate.
• (c) Filing. The application for the probate of a will or for letters of administration shall be filed with the Surrogate's Court of the county in which the decedent was domiciled at death, or if at that time the decedent was not domiciled in this State, then with the Surrogate's Court of any county in which the decedent left any property or into which any property belonging to the decedent's estate may have come.
• (d) Recording. The application shall be recorded by the Surrogate's Court.

Note: Source-R.R. 4:99-1, 5:3-2; caption of rule, and text of paragraphs (a) and (b) amended, new paragraph (c) adopted, and former paragraph (c) redesignated as paragraph (d) and amended June 29, 1990 to be effective September 4, 1990; paragraph (a) amended June 28, 1996 to be effective September 1, 1996.

4:80-2. Proof of Will: Nonresident or Deceased Witnesses

• (a) Depositions of Nonresident Witnesses. If any subscribing witness to a will of any person resident or nonresident in this State, at death resides or is out of the State, the Surrogate's Court may issue a commission with a photocopy of the will attached authorizing the taking of the deposition of the witness in the form of a witness-proof. The commission may be directed to any person before whom depositions may be taken under R. 4:12-2 and 4:12-3, or to the Surrogate or Deputy Surrogate of any county of this State, who shall take the proofs under oath and certify to the taking of the same.
• (b) Deceased Witnesses. If all witnesses are deceased, the signature of each such witness may be proved by one person, and the same person may prove all signatures. Proof of death of the attesting witnesses may be made by affidavit without producing certified copies of death certificates.

Note: Source-R.R. 4:99-2, 5:4-2. Paragraph (a) amended July 26, 1984 to be effective September 10, 1984; paragraphs (a) and (b) amended June 29, 1990 to be effective September 4, 1990.

4:80-3. Renunciation by or Notice to Next of Kin and Others

If the application for the letters specified in R. 4:80-1(a) (except letters testamentary) is made to the Surrogate's Court by the person first entitled thereto, no renunciation or notice shall be required; but if the application is made by any other person, the applicant shall file:

• (a) The renunciation, acknowledged before an officer qualified to take acknowledgments of deeds, of all competent adult persons whose right to the letters is prior or equal to that of the applicant, containing a request that the letters issue according to the application; or
• (b) proof that at least 10 days' notice of the application has been given to all such persons residing in this State who have not renounced, and that at least 60 days' notice, or such notice (not less than 10 days in length) as the Surrogate's Court by order may have directed, has been given to all of them who reside outside this State. If in an application for letters of administration with the will annexed, it appears that the decedent left a will naming an executor who has not renounced, proof shall be submitted showing that like notice has been given to the executor. In any case the Surrogate's Court may require the applicant to give notice to interested persons other than those entitled to letters. Such notice may be served either as prescribed by R. 4:4-4 or by registered or certified mail return receipt requested to the person's last known address. If the name or address of any such person entitled to notice is not known, then an affidavit of inquiry as to such name or address, made as prescribed by R. 4:4-5(b) shall be filed in lieu of proof of notice.
• (c) In addition to the proofs required in paragraphs (a) and (b) of this rule, if the application for letters of administration shows that there are no known next of kin or knowledge thereof, the applicant shall file proof that at least 20 days' notice of the application has been given to the Attorney General of this State.
• (d) All renunciations shall be recorded by the Surrogate's Court.

Note: Source-R.R. 4:99-3. Amended July 26, 1984 to be effective September 10, 1984; former caption and text of R. 4:80-3 deleted, introductory text and paragraphs (a), (b) and (c) of former R. 4:80-4 amended, paragraph (d) adopted, and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraph (b) amended July 13, 1994 to be effective September 1, 1994; paragraph (b) amended July 23, 2010 to be effective September 1, 2010.

4:80-4. Qualifications

Qualifications of executors and administrators shall be taken as provided in R. 4:96-1.

Note: New caption and text adopted June 29, 1990 to be effective September 4, 1990.

4:80-5. Residents Preferred Over Nonresidents

As between persons equally entitled, the Surrogate's Court in granting letters shall give preference to residents of this State over nonresidents, unless the best interest of the estate will not thereby be served.

Note: Source-R.R. 4:99-4. Amended July 26, 1984 to be effective September 10, 1984; amended June 29, 1990 to be effective September 4, 1990.