FAQs About Probate Estate Litigation

Will Contest and Probate Litigation Frequently Asked Questions (FAQ)

I meet with many clients each year who offer a unique and interesting narrative about their case. For your benefit, I have prepared the following list of frequently asked questions and my answers when clients ask about Will Contest and Probate Litigation in New Jersey.  I hope you will find this dialogue informational.

1. What is a Will Contest and Probate Litigation?

A Will Contest is the most common lawsuit in estate probate litigation. Everyone has the legal right to decide who gets their worldly possessions after death, including their assets (both financial and personal). Except for a surviving spouse, no one is entitled to anyone’s estate, not children, parents, family members, etc. Sometimes beneficiaries are wrongfully deprived of their rightful inheritance, whether it’s intentional or circumstantial. In these situations, you can file a lawsuit to contest a Last Will and Testament.

2. What are the warning signs of when to file a Will Contest Probate lawsuit?

Before the need to file a probate lawsuit, there are generally signs to alert you that legal action is necessary. Here are just a few “signs” to be aware of:

  • Is the Executor being secretive or ignoring your communication attempts?
  • Do you have reason to believe the deceased did not have legal capacity when signing their estate planning documents?
  • Do you have concerns regarding the actions of a Power of Attorney before the person died?
  • Was there a sudden change to the Will or Trust at or near the time of death, especially a significant change to the will after years of its prior existence?
  • Has there been a disinheritance that does not make sense or seems suspicious?
  • Do you suspect fraud in the creation of the Will or Trust such as undue influence?

These are just some of the warning signs that a will contest and/or probate lawsuit may be necessary. If you notice these signs or feel you might be at risk, please do not hesitate to contact us. These types of cases can be difficult and you do not want to go it alone.


I was in a panic. My fiancée passed away and I was named as a beneficiary of a valuable piece of real estate in Hudson County, New Jersey under his Will. Adding to my grief was the decision of the Executor to ignore the language of his Will and then he refused to convey ownership of the real estate to me.

What were my rights? What could I do? I called various people for a referral to an attorney experienced in probate litigation. Mr. Niemann was recommended to me and immediately he took charge. He filed a lawsuit against the Executor and aggressively fought for me throughout the legal process. He would not compromise or settle for less than I deserved under the Will. A trial took place and Mr. Niemann tried the case for me to the end. He was prepared and his office and associates offered tremendous assistance to me and Mr. Niemann in getting the case ready for trial.

Today, I am the owner of the property my fiancee intended for me to have. I cannot say enough good things about my experience with Mr. Niemann and his very capable office.

– Noreika Sanderson – Weehawken, NJ & New York City, NY

3. What is the difference between an Executor and a Beneficiary?

The Executor of an estate is the person who is responsible for administering the terms of the will. This person is called an Executor or Estate Administrator. A Beneficiary is a person(s) or organization(s) entitled to receive something of value from the will or trust.

4. What exactly is Probate?

Probate is the legal process by which a Last Will is being validated and approved by the County Surrogate. An application to probate a Last Will can be filed 10 days after the death of an individual. The Last Will must be filed in the county in which probate is proposed. The reason for the 10-day wait is so that anyone who wants to contest (or disagree) with the validity of the will can come forward and present their claim.

5. What is “Undue Influence”?

Undue Influence consists of a person(s) who causes someone else to do something or not do something he/she normally would do or conversely not do. Because of this undue influence, the decedent may have transferred ownership of valuable property and assets, made gifts, changed beneficiaries, acted impulsively on decisions, or given authority to someone that he/she would not typically have done. The influence on the victim must be such that it overpowered his/her normal thinking and free will.

Undue Influence can be difficult to prove and just as hard to defend against. If you suspect Undue Influence was at play, or have been accused of causing it, contact us IMMEDIATELY! It is important that you get started on gathering proof right away. You will need the assistance of a professional who has been through these types of cases many times.

6. What should I do if I suspect Undue Influence? 

Your first step should be to contact us so we can get together as soon as possible. It is important to realize that the burden of proof lies on the person challenging the will. Establishing proof of the mental health, condition and state of mind of the decedent prior to signing his or her will (or trust) is crucial to proving a case. Some ways to help show “mental capacity” can come from:

  • Fact Witnesses
  • Attesting Witnesses to the Will/Trust/Gift
  • The Attorney who prepared the Will and/or Trust is called to testify
  • The Treating Physician of the person
  • Decedent’s Hospital/Medical Records

7. What are “Non-Probate Assets”?

Assets that pass outside of a Will are known as Non-Probate Assets. Disputes can and often do arise over claims to ownership of non-probate assets. Non-Probate assets can include:

  • Gifts made to a third party prior to the person’s death
  • A transfer of property (both financial and physical) via an agent known as the Power of Attorney and not by the owner of the property
  • Creation of Joint Accounts or changes to beneficiary designations that result in a transfer of ownership upon death and are part of the probate estate
  • Claims of Tortious Interference when a logical beneficiary is either excluded from an inheritance or receives a disproportionately small inheritance

8. What kinds of gifts can be disputed?

There are many types of gifts that can be questioned if wrongful activity is suspected. They include:

  • Gifts made prior to death
  • Gifts between husband and wife (especially in 2nd+ marriages), when health is seriously declining
  • Gifts between parent and child made pre-death
  • Gifts made between a guardian and his/her ward
  • Gifts between a Power of Attorney and principals

9. What happens if you die without a Will or Trust in New Jersey?

A process called Intestate Succession is adopted to distribute a person’s estate. The beneficiaries who receive priority of the estate can include spouses, civil union partner, and children of the decedent. It is crucial if you want your assets to be distributed according to your wishes and not by default, that you create a Will designating your wishes.

10. What does Breach of Fiduciary Duty mean?

When an Executor, Power of Attorney (POA), and/or Trustee abuses their position of trust or profits from it, or if they fail to safeguard estate assets which result in a $$$ (money) loss to beneficiaries and heirs.  In such a case, the representative is in breach of their fiduciary duty. An executor or trustee is legally required to act in good faith to put the interests of the estate and its beneficiaries above their own. If the executor or trustee does not protect the value of assets of the estate, those beneficiaries who were wronged can file suit.

11. What if a mistake is discovered in a Will?

Mistakes happen, and for many reasons. This is yet another reason why you want to consult with an experience attorney when contesting a will. Sometimes a will is written poorly or is confusing in its meaning. It can include vague terms or terms that may contradict each other. When this happens, you can file a claim with the court to cause a “reformation” of the Last Will. Reformation is the correction of the error or ambiguity and confusion in language recited in the will, making it more concise and its content more accurate and clearer.

Do you still have additional questions or a matter involving a Will Contest and Probate Litigation case in New Jersey?  Contact Fredrick P. Niemann, a NJ elder abuse law attorney toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.

Fred wants to meet with you to discuss your case.  Mr. Niemann and the attorneys and staff at Hanlon Niemann & Wright are experienced probate trial attorneys with an extensive background in probate and trust law and litigation. The firm has been involved in many significant cases, many just like yours.



Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Will Contest & Probate Litigation Attorney