Demanding That A Person with Possession Produce A Will For Probate

HNWElder Law, Estate Administration and Probate

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Probate Attorney and Estate Probate Litigation Attorney

A Court Has the Statutory Authority to Order Production of a Will and to Appoint an Administrator For the Estate when the Last Will cannot be found.

You know a Will exists and someone has it. They refuse to produce it or claim they can’t find it. Something has to be done but no one is doing anything or you’re not sure what to do! Here’s your solution.

The Legislature gives the power to the Chancery Court to “compel discovery as to the existence or whereabouts of any paper purporting to be a will of any decedent who died a resident of the county, which has not been offered for probate, and to require the will be filed with the surrogate of the county for probate.” N.J.S.A. §3B:3-29. In one case I read, more than one (1) year expired since the Decedent’s death, and despite the client’s repeated requests to her siblings that they produce a Last Will and Testament of the Decedent, a Will did not emerge. On her behalf I requested the Court to compel production of the Last Will and Testament of the Decedent, in the event that one exists and/or could be located.

Alternatively, I requested that my client be appointed as the Administrator of the Decedent’s Estate to serve without bond. The estate had languished with no marshaling of the assets, presumably no filing of any necessary tax returns, and no distribution of assets was made to the heirs, for over a year. Therefore, I claimed that the Court had the power to appoint “any fit person applying therefor” as administrator of the estate if the heirs of the intestate do “not claim the administration within 40 days after the death of the intestate.” N.J.S.A §3B:10-2. “The right to administration is personal in the next of kin, and if they fail to apply for or waive it in favor of someone else, it is for the court to appoint, in its discretion, such proper person as will accept it.”

I was successful in this case in having a neutral administrator appointed to probate and finalize the Estate since the children of the Decedent were unable to come to a consensus as to whom should serve as administrator.

To discuss your NJ Estate and Probate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.


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