FastCounsel

Disclaimer: This article is for educational purposes and does not constitute legal advice.

Detailed Answer

In New Jersey, a valid will must meet certain formal requirements before it can be admitted to probate. Under N.J. Stat. Ann. § 3B:3-2, a will must be in writing, signed by the testator, and witnessed by at least two individuals. Notarization is not required but often accompanies a self-proving affidavit under N.J. Stat. Ann. § 3B:3-5.

If your decedent’s document lacks the signatures of two witnesses or a self-proving affidavit, you may still seek admission under the harmless error doctrine. New Jersey Court Rule 6:40-1(c) allows the Surrogate’s Court to admit a defective will if you show by clear and convincing evidence that the decedent intended the document to be their last will and testament. This doctrine applies to documents that fail to comply with statutory formalities.

Steps to Probate an Unwitnessed or Unnotarized Will

1. File a Petition: Submit a petition for probate in the Surrogate’s Court of the county where the decedent resided.
2. Submit the Original Document: Provide the unexecuted or partially executed will and explain which formalities are missing.
3. Present Evidence of Intent: Gather affidavits, sworn testimony, emails, draft versions, or other communications showing the decedent intended the document as their will. Witnesses who observed signing or heard the decedent express intent can offer testimony.
4. Serve Notice: Notify heirs at law and beneficiaries in accordance with N.J. Stat. Ann. § 3B:3-13.
5. Attend the Hearing: The Surrogate’s Court reviews the evidence under a clear and convincing standard. If satisfied, the court admits the will to probate despite the missing witnesses or notarization.
6. Proceed with Administration: Once admitted, the estate administration follows standard probate procedures.

Helpful Hints

• Collect all drafts, notes, emails, text messages, or letters indicating testamentary intent.
• Identify individuals who observed the decedent sign or heard them declare this as their will.
• Have these witnesses prepare sworn affidavits before a notary public.
• Review New Jersey Court Rule 6:40-1(c) on the harmless error doctrine at N.J. Ct. R. 6:40-1(c).
• Be mindful of probate filing deadlines—generally within three years of death under N.J. Stat. Ann. § 3B:3-4.
• Consider consulting a probate attorney to ensure compliance with court procedures and evidentiary standards.