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Dan Posternock, Esq.
Managing Shareholder and Director of the Litigation and Business Practices
Jeffrey S. Apell, Esq.
Shareholder and Director of the Real Estate and Estate Practices
Erwin Apell, Esq.
Robyn Goldenberg, Esq.
Chief Operating Officer and Co-Director of the Estate Practice
Marie Maney, Esq.
Judith A. Schneider
Diana R. Sever, Esq.
Litigation and Special Education Team Leader

New Jersey Probate Litigation Attorneys

What is Probate litigation in New Jersey?

Probate litigation, also known as estate litigation, in New Jersey, refers to the legal process where parties, usually heirs, beneficiaries, or others associated with a deceased individual, contest matters relating to the distribution of that person’s estate. This often contentious process is initiated when there is a disagreement or dispute over the deceased’s will, trust, or the appointment of an executor.

Common Reasons for Probate Litigation

Probate litigation in New Jersey is commonly initiated due to disputes or uncertainties regarding the distribution and management of a deceased individual’s estate. Here are the most common reasons prompting probate litigation in the state:

1. Will Contests:

Will contests are one of the prevalent causes of probate litigation. These occur when the validity of a will is questioned by an interested party. Common grounds for will contests include:

  • Lack of Mental Capacity: If it’s believed that the decedent (person who passed away) lacked the mental capacity to understand the implications of the will at the time it was created, parties may contest its validity.
  • Undue Influence: Will contests also arise if there’s suspicion that the deceased was under undue influence from someone, resulting in a will that does not truly reflect their wishes.
  • Improper Execution: New Jersey law mandates specific procedures for executing a will. If these aren’t followed, the will’s validity can be contested.


2. Trust Disputes:

Trust disputes surface when there are disagreements between beneficiaries and trustees or among the beneficiaries themselves regarding the management and distribution of trust assets. Common issues in trust disputes are:

  • Breach of Fiduciary Duty: Beneficiaries might allege that the trustee is not acting in their best interest or is mismanaging the trust assets, which is a violation of the trustee’s fiduciary duties.
  • Trustee Misconduct: Any form of alleged illegal activity or misconduct by the trustee can lead to probate litigation.


3. Beneficiary Rights:

Disputes often occur when beneficiaries believe their rights are being violated or not adequately recognized during the probate process. Key issues include:

  • Spousal Rights: Sometimes, the rights of surviving spouses concerning asset distribution are contested, leading to litigation.
  • Rights of Surviving Children: Similar disputes can occur among surviving children, especially in blended families or where there are children from multiple marriages.


4. Guardianship Disputes:

Guardianship disputes are more common when the decedent leaves behind minors or dependents who cannot take care of themselves. These disputes might involve:

  • Questioning the Suitability of Guardians: If there are concerns about the appointed guardian’s ability to care for the dependent adequately, litigation may be initiated to appoint a new guardian.
  • Disagreements Between Guardians: There might be conflicts between co-guardians or between guardians and other family members regarding the dependent’s care and well-being.


Probate litigation in New Jersey arises for various reasons, with will contests, trust disputes, issues regarding beneficiary rights, and guardianship disputes being the most common. Each of these issues is inherently complex and sensitive, often requiring the experience of a probate litigation attorney to navigate the legal intricacies involved.

What is the Probate Litigation Process in New Jersey?

The process of probate litigation in New Jersey encompasses several stages, primarily initiated when there is a dispute over the distribution or management of a deceased individual’s estate. Below is an overview of the process:

1. Filing a Probate Litigation Claim:

  • Initiation: The process begins when an interested party files a claim disputing a will, trust, or other estate-related matter. The petitioner must file the appropriate legal documents to the probate court to initiate the litigation.


2. Discovery Phase:

  • Information Gathering: Parties involved collect and exchange information relevant to the case. This might include gathering evidence of the deceased’s mental state, actions of trustees or executors, or documentation related to the estate’s assets.
  • Witness Interviews: Attorneys may conduct depositions or interviews with witnesses, beneficiaries, or other relevant parties to gather additional information and insights.
  • Expert Consultations: In some cases, expert witnesses, like medical professionals or forensic accountants, might be consulted to provide specialized knowledge.


3. Mediation & Settlement Negotiations:

  • Mediation Process: Before going to trial, parties might enter mediation, a less adversarial process where a neutral third party helps facilitate discussions and negotiations to reach a mutually agreeable resolution.
  • Settlement Negotiations: Parties might engage in negotiations to settle the dispute out of court, often to save time, money, and emotional distress associated with a court trial.


4. Trial Procedure:

  • Pre-Trial Motions: Attorneys may file motions to set the boundaries for the trial, including what evidence can be presented.
  • Court Trial: If mediation and settlement negotiations fail, the case goes to trial where each party presents their evidence, and witnesses may be called to testify. The judge will then make a decision based on the law and the evidence presented.
  • Judge’s Decision: The judge or jury (if applicable) delivers a verdict resolving the dispute. The judge’s decision is based on the legal merits of the case and the evidence provided during the trial.


5. Appeals Process:

  • Filing an Appeal: If a party is dissatisfied with the court’s decision, they may have the option to file an appeal. An appellate court will review the case for legal errors that might have affected the outcome.
  • Appellate Decision: The appellate court can uphold the original decision, reverse it, or send it back to the lower court for further proceedings.


Probate litigation in New Jersey is a complex process that can be emotionally and financially taxing for all parties involved. Because of the intricacy and sensitivity of these cases, individuals facing probate disputes are advised to seek experienced legal counsel to navigate through the legal system efficiently and effectively. Having a knowledgeable attorney can provide invaluable support and guidance during this challenging time, working toward securing a favorable outcome for their clients.

How to Save Your Loved Ones from Probate Litigation

Avoiding probate litigation in New Jersey can save your heirs not only money but also the emotional distress associated with legal disputes. A comprehensive estate plan can significantly minimize the risk of probate litigation. Here’s how to create one:

1. Draft a Clear and Unambiguous Will:

  • Professional Assistance: Engage an experienced estate planning attorney to help draft a will that clearly expresses your wishes and complies with New Jersey’s legal requirements.
  • Detail Specific Bequests: Clearly state the distribution of assets, naming specific heirs and the exact assets or percentage of the estate they are to receive.


2. Create a Trust:

  • Establishing Trusts: Trusts can avoid the probate process entirely, providing a private and efficient means of transferring assets. Revocable Living Trusts are popular choices.
  • Appoint Reliable Trustees: Select trustworthy and competent individuals or institutions as trustees to minimize disputes over trust management.


3. Update Estate Plans Regularly:

  • Review and Revise: Regularly review and update your estate planning documents to reflect changes in your assets, family situation, or wishes.
  • Address Major Life Events: Update estate plans after major life events like marriage, divorce, birth of a child, death of a beneficiary, or significant changes in financial status.


4. Assign Power of Attorney:

  • Durable Power of Attorney: This legal document allows you to appoint someone to manage your finances and legal affairs if you become incapacitated, reducing uncertainty and potential disputes.


5. Health Care Directive:

  • Advance Directive: Clearly state your wishes regarding medical treatment and end-of-life care through a living will and appoint a healthcare proxy to make decisions on your behalf if you’re unable to.


6. Communicate with Heirs:

  • Open Discussions: Communicate openly with family members and beneficiaries about your estate planning decisions to manage expectations and reduce the likelihood of disputes.
  • Explain Choices: Clarifying your decisions can prevent misunderstandings and help beneficiaries understand your rationale, making them less likely to contest the will or trust.


7. Seek Professional Advice:

  • Legal Counsel: Engage an experienced estate planning attorney who can provide advice, draft documents, and help navigate complex legal requirements.
  • Financial Advisor Consultation: Professionals can offer guidance on tax implications and asset management, helping to structure your estate in a way that minimizes tax burdens and maximizes benefits for heirs.


A comprehensive estate plan is crucial in avoiding probate litigation in New Jersey. This proactive approach ensures that your wishes are honored, assets are protected, and beneficiaries receive their due inheritance with minimal dispute and contention. Regular consultation with legal and financial advisors will keep your estate plan up to date and in line with the state’s legal standards, offering peace of mind for you and your loved ones.

Ten Frequently Asked Questions About Probate Litigation in New Jersey

1. What exactly is probate litigation in New Jersey?

Potential clients might not be familiar with the term and require an explanation of probate litigation and how it operates within the specific legal context of New Jersey.

2. Under what circumstances would someone need to initiate probate litigation?

Clients often need clarity on the situations or disputes that necessitate probate litigation, and understanding these circumstances can help them evaluate their own position.

3. How long does the probate litigation process typically take in New Jersey?

Duration is a common concern for clients, as they want to have an estimate of the time investment involved in probate litigation cases.

4. What are the legal costs associated with probate litigation?

Understanding the financial implications, including attorney fees and court costs, is crucial for clients considering engaging in probate litigation.

5. Can probate litigation be avoided or prevented?

Potential clients might wish to explore preventive measures or alternative dispute resolution methods to avoid the often lengthy and costly process of probate litigation.

6. How can I ensure the validity of a will to prevent future litigation?

Clients may seek guidance on creating airtight wills and trusts that can withstand legal scrutiny, minimizing the risk of future disputes and litigation.

7. What is your experience and track record with handling probate litigation cases in New Jersey?

Clients typically want to assess the attorney’s experience, and success rate in probate litigation cases before deciding to engage their services.

8. What is the role of an executor or trustee, and how can they be held accountable?

Understanding the responsibilities and legal obligations of executors and trustees is crucial for clients who might either be appointing or challenging these individuals in court.

9. What are my rights and obligations as a beneficiary?

Beneficiaries might need clarification on their entitlements, rights, and responsibilities within the probate process and how they can protect their interests.

10. How should I prepare for a consultation with a probate litigation attorney, and what information will you need from me?

Clients would benefit from knowing what documents, evidence, and information they should bring to an initial consultation, helping them prepare and making the meeting more productive.

Seeking the Assistance of a Probate Attorney

Understanding probate litigation in New Jersey is vital for those navigating the complexities of estate planning and distribution. The process can be daunting, often bringing about emotional and financial strain on all parties involved. However, with proactive planning and the assistance of our experienced New Jersey probate attorneys, you can significantly reduce the risks of litigation, ensuring a smoother transition of assets to your loved ones and upholding your final wishes with respect and dignity.

Posternock Apell is Here to Help

Are you facing uncertainties or disputes regarding a will, trust, or estate in New Jersey? Do you need advice and assistance to navigate through probate litigation confidently? Our caring and compassionate probate litigation attorneys are here to provide the support and guidance you need during these challenging times. With a deep understanding of New Jersey probate laws and a client-centered approach, we are committed to protecting your rights and interests, offering peace of mind for you and your family. Don’t leave things to chance; secure your legacy with us. 

Contact our office today to schedule a consultation, and let us help you take control of your future with estate planning and probate litigation services. Your peace of mind starts with a simple call. Secure your legacy and protect your loved ones – reach out now for a consultation.


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