Estate Law Blog

In the majority of cases that come into my office in NJ, actual ancillary probate is not necessary.  If the decedent died with a Will in an another state owning property in New Jersey, most of the time it’s real property – that is, real estate – and as I discussed earlier there’s no need to go through ancillary probate in such cases.

To my knowledge, there are no reported cases directly concerning ancillary probate;  I assume that this reflects both how relatively uncommon it is and also how relatively straight-forward.   The procedure is of course available and might be desirable in some instances even when only real property is in New Jersey.  (If, for instance, the decedent owned real property in several counties in New Jersey, recording the Will in each county may be more trouble than simply probating the Will in one.)  The governing rule is N.J.S.A. 3B:3-26, which says simply:

When the will of any individual not resident in this State at his death shall have been admitted to probate in any state of the United States or other jurisdiction or country, the surrogate’s court of any county may admit it to probate for any purpose and issue letters thereon, provided the will is valid under the laws of this State.

The application, then, is made to Surrogate;  narrowly speaking, the Superior Court has jurisdiction as well and the application could begin there, but unless the Estate is contested in the jurisdiction of domicile there is no reason I can think of to begin in the Superior Court.  In practice, the personal representative produces an exemplified copy of the Will and proof of the out-of-state probate.  The exemplified copy of the Will must be produced for obvious reasons, and the record of the out-of-state probate must be produced because you can’t have ancillary probate in New Jersey if you don’t have original probate somewhere else.   In most other respects, the procedure essentially follows ordinary probate in New Jersey.

I feel obliged to give my tax warning whenever I’m talking about an out-of-state Estate.  New Jersey’s inheritance tax, if due, must be paid within 8 months of the decedent’s death.  In addition, the personal representative should be aware that New Jersey’s Estimated Gross Income Tax requirements can be onerous.