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New Jersey Estate and Probate Law
Title 3B – Administration of Estates – Decedents and Others
3B:1-1 Definitions A to H.
3B:1-1. As used in this title, unless otherwise defined:
“Administrator” includes general administrators of an intestate and unless restricted by the subject or context, administrators with the will annexed, substituted administrators, substituted administrators with the will annexed, temporary administrators and administrators pendente lite.
“Beneficiary,” as it relates to trust beneficiaries, includes a person who has any present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer and as it relates to a charitable trust, and includes any person entitled to enforce the trust.
“Child” means any individual, including a natural or adopted child, entitled to take by intestate succession from the parent whose relationship is involved and excludes any individual who is only a stepchild, a resource family child, a grandchild or any more remote descendant.
“Claims” include liabilities whether arising in contract, or in tort or otherwise, and liabilities of the estate which arise at or after the death of the decedent, including funeral expenses and expenses of administration, but does not include estate or inheritance taxes, demands or disputes regarding title to specific assets alleged to be included in the estate.
“Cofiduciary” means each of two or more fiduciaries jointly serving in a fiduciary capacity.
“Descendant” of an individual means all of his progeny of all generations, with the relationship of parent and child at each generation being determined by the definition of child contained in this section and parent contained in N.J.S.3B:1-2.
“Devise,” when used as a noun, means a testamentary disposition of real or personal property and when used as a verb, means to dispose of real or personal property by will.
“Devisee” means any person designated in a will to receive a devise. In the case of a devise to an existing trust or trustee, or to a trustee of a trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.
“Distributee” means any person who has received property of a decedent from his personal representative other than as a creditor or purchaser. A trustee is a distributee only to the extent of a distributed asset or increment thereto remaining in his hands. A beneficiary of a trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative.
“Domestic partner” means a domestic partner as defined in section 3 of P.L.2003, c.246 (C.26:8A-3).
“Domiciliary foreign fiduciary” means any fiduciary who has received letters, or has been appointed, or is authorized to act as a fiduciary, in the jurisdiction in which the decedent was domiciled at the time of his death, in which the ward is domiciled or in which is located the principal place of the administration of a trust.
“Estate” means all of the property of a decedent, minor or incapacitated individual, trust or other person whose affairs are subject to this title as the property is originally constituted and as it exists from time to time during administration.
“Fiduciary” includes executors, general administrators of an intestate estate, administrators with the will annexed, substituted administrators, substituted administrators with the will annexed, guardians, substituted guardians, trustees, substituted trustees and, unless restricted by the subject or context, temporary administrators, administrators pendente lite, administrators ad prosequendum, administrators ad litem and other limited fiduciaries.
“Governing instrument” means a deed, will, trust, insurance or annuity policy, account with the designation “pay on death” (POD) or “transfer on death” (TOD), security registered in beneficiary form with the designation “pay on death” (POD) or “transfer on death” (TOD), pension, profit-sharing, retirement or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney, or a dispositive, appointive, or nominative instrument of any similar type.
“Guardian” means a person who has qualified as a guardian of the person or estate of a minor or incapacitated individual pursuant to testamentary or court appointment, but excludes one who is merely a guardian ad litem.
“Heirs” means those persons, including, but not limited to, the surviving spouse, the domestic partner and the descendants of the decedent, who are entitled under the statutes of intestate succession to the property of a decedent.
L.1981, c.405, s.3B:1-1, eff. May 1, 1982; amended 1997, c.379, s.2; 2004, c.130, s.15; 2004, c.132, s.1; 2005, c.331, s.1.
3B:1-2 Definitions I to Z.
3B:1-2. “Incapacitated individual” means an individual who is impaired by reason of mental illness or intellectual disability to the extent that the individual lacks sufficient capacity to govern himself and manage his affairs.
The term incapacitated individual is also used to designate an individual who is impaired by reason of physical illness or disability, chronic use of drugs, chronic alcoholism, or other cause (except minority) to the extent that the individual lacks sufficient capacity to govern himself and manage the individual’s affairs.
The terms incapacity and incapacitated refer to the state or condition of an incapacitated individual as hereinbefore defined.
“Intellectual disability” means a significant subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior which are manifested during the development period.
“Issue” of an individual means a descendant as defined in N.J.S.3B:1-1.
“Joint tenants with the right of survivorship” means co-owners of property held under circumstances that entitle one or more to the whole of the property on the death of the other or others, but excludes forms of co-ownership in which the underlying ownership of each party is in proportion to that party’s contribution.
“Local administration” means administration by a personal representative appointed in this State.
“Local fiduciary” means any fiduciary who has received letters in this State and excludes foreign fiduciaries who acquire the power of local fiduciary pursuant to this title.
“Minor” means an individual who is under 18 years of age.
“Nonresident decedent” means a decedent who was domiciled in another jurisdiction at the time of his death.
“Parent” means any person entitled to take or who would be entitled to take if the child, natural or adopted, died without a will, by intestate succession from the child whose relationship is in question and excludes any person who is a stepparent, resource family parent, or grandparent.
“Per capita.” If a governing instrument requires property to be distributed “per capita,” the property is divided to provide equal shares for each of the takers, without regard to their shares or the right of representation.
“Payor” means a trustee, insurer, business entity, employer, government, governmental agency or subdivision, or any other person authorized or obligated by law or a governing instrument to make payments.
“Person” means an individual or an organization.
“Per Stirpes.” If a governing instrument requires property to be distributed “per stirpes,” the property is divided into as many equal shares as there are: (1) surviving children of the designated ancestor; and (2) deceased children who left surviving descendants. Each surviving child is allocated one share. The share of each deceased child with surviving descendants is divided in the same manner, with subdivision repeating at each succeeding generation until the property is fully allocated among surviving descendants.
“Personal representative” includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status. “General personal representative” excludes special administrator.
“Representation; Per Capita at Each Generation.” If an applicable statute or a governing instrument requires property to be distributed “by representation” or “per capita at each generation,” the property is divided into as many equal shares as there are: (1) surviving descendants in the generation nearest to the designated ancestor which contains one or more surviving descendants; and (2) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants, as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the designated ancestor.
“Resident creditor” means a person domiciled in, or doing business in this State, who is, or could be, a claimant against an estate.
“Security” includes any note, stock, treasury stock, bond, mortgage, financing statement, debenture, evidence of indebtedness, certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under the title or lease, collateral, trust certificate, transferable share, voting trust certificate or, in general, any interest or instrument commonly known as a security or as a security interest or any certificate of interest or participation, any temporary or interim certificate, receipt or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the foregoing.
“Stepchild” means a child of the surviving, deceased, or former spouse who is not a child of the decedent.
“Successor personal representative” means a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative.
“Successors” means those persons, other than creditors, who are entitled to real and personal property of a decedent under a decedent’s will or the laws governing intestate succession.
“Testamentary trustee” means a trustee designated by will or appointed to exercise a trust created by will.
“Testator” includes an individual and means male or female.
“Trust” includes any express trust, private or charitable, with additions thereto, wherever and however created. It also includes a trust created by judgment under which the trust is to be administered in the manner of an express trust. “Trust” excludes other constructive trusts, and it excludes resulting trusts, guardianships, personal representatives, trust accounts created under the “Multiple-party Deposit Account Act,” P.L.1979, c.491 (C.17:16I-1 et seq.), gifts to minors under the “New Jersey Uniform Gifts to Minors Act,” P.L.1963, c.177 (C.46:38-13 et seq.), or the “New Jersey Uniform Transfers to Minors Act,” R.S.46:38A-1 et seq., business trusts providing for certificates to be issued to beneficiaries, common trusts, security arrangements, liquidation trusts, and trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions or employee benefits of any kind, and any arrangement under which a person is nominee or escrowee for another.
“Trustee” includes an original, additional or successor trustee, whether or not appointed or confirmed by court.
“Ward” means an individual for whom a guardian is appointed or an individual under the protection of the court.
“Will” means the last will and testament of a testator or testatrix and includes any codicil and any testamentary instrument that merely appoints an executor, revokes or revises another will, nominates a guardian, or expressly excludes or limits the right of a person or class to succeed to property of the decedent passing by intestate succession.
amended 1997, c.379, s.3; 2004, c.130, s.16; 2004, c.132, s.2; 2005, c.160, s.1; 2013, c.103, s.21.
3B:1-3 Devolution of property upon death.
3B:1-3. Upon the death of an individual, his real and personal property devolves to the persons to whom it is devised by his will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of testate estates, or in the absence of testamentary disposition, to his heirs, or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting devolution of intestate estates, subject to rights of creditors and to administration.
L.1981, c.405, s.3B:1-3, eff. May 1, 1982; amended 2004, c.132, s.3.
3B:1-4. Contractual arrangements relating to death
A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after September 1, 1978, can be established only by (1) provisions of a will stating material provisions of the contract; (2) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.
L.1981, c. 405, s. 3B:1-4, eff. May 1, 1982.
3B:1-5. Effect upon vested rights and remedies
The repeal of any sections, acts or parts of acts by the enactment of this title shall not affect any right now vested in any person pursuant to any sections, acts or parts of acts so repealed, nor any remedy where an action or proceeding thereunder has been instituted and is pending on the effective date of this title.
L.1981, c. 405, s. 3B:1-5, eff. May 1, 1982.
3B:1-6. Law governing rights, duties and powers of fiduciaries
The provisions of this title shall govern the rights, duties and powers of successors and fiduciaries relating to the administration of all estates except that the validity and propriety of all acts done by a fiduciary and all rights established in successors prior to September 1, 1978, shall be determined under the law as then in effect.
L.1981, c. 405, s. 3B:1-6, eff. May 1, 1982.
3B:1-7. Exclusion of property passing to a testamentary trustee other than by devise from rights of personal representative or creditors of decedent
Property passing to a testamentary trustee other than by devise shall not be subject to rights of, powers of or to administration by a personal representative or to rights of creditors to any extent beyond that to which it would otherwise be if the testamentary trust was an inter vivos trust.
L.1981, c. 405, s. 3B:1-7, eff. May 1, 1982.
3B:1-8. Application of title to wills
The provisions of this title shall apply to any wills of decedents dying on or after September 1, 1978.
L.1981, c. 405, s. 3B:1-8, eff. May 1, 1982.
3B:1-8.1 Applicability of act.
23.The provisions of P.L.2004, c. 132 and P.L.2005, c.160 (C.3B:1-8.1 et al.) shall apply to any decedent dying on or after February 27, 2005.
L.2005,c.160,s.23.
3B:1-9. Effect of fraud and evasion
Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this title or if fraud is used to avoid or circumvent the provisions or purposes of this title, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person (other than a bona fide purchaser or lender) benefitting from the fraud, whether innocent or not. Any proceeding must be commenced within 2 years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than 5 years after the time of commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during his lifetime which affects the succession of his estate.
L.1981, c. 405, s. 3B:1-9, eff. May 1, 1982.
3B:2-1. Jurisdiction of Superior Court not affected
The provisions of this title are not intended and shall not be so construed as in any way to affect, impair or limit the original general jurisdiction of the Superior Court given to it by the Constitution.
L.1981, c. 405, s. 3B:2-1, eff. May 1, 1982.
3B:2-2. General authority of Superior Court as to probate matters
The Superior Court shall have full authority to hear and determine all controversies respecting wills, trusts and estates, and full authority over the accounts of fiduciaries, and also authority over all other matters and things as are submitted to its determination under this title.
L.1981, c. 405, s. 3B:2-2, eff. May 1, 1982.
3B:2-3. Jurisdiction of Superior Court over surrogate’s proceedings
The Superior Court shall have jurisdiction to hear and determine disputes or doubts arising before the surrogate or in the surrogate’s court of a county, to review any order, determination or judgment of the surrogate or the surrogate’s court of a county and upon the review to hear and determine the matter, and to grant relief from or to direct the entry of, as of a former time, any order, determination or judgment of the surrogate or the surrogate’s court of a county.
L.1981, c. 405, s. 3B:2-3, eff. May 1, 1982.
3B:2-4. Proceedings in Superior Court on order to show cause
The Superior Court, in any proceeding by or against fiduciaries or other persons, may proceed in a summary manner.
L.1981, c. 405, s. 3B:2-4, eff. May 1, 1982.
3B:2-5 Disputes or doubts in proceedings before the surrogate.
3B:2-5. In the event of any dispute or doubt arising before the surrogate or in the surrogate’s court, neither the surrogate nor the court shall take any further action therein, except in accordance with the order of the Superior Court.
L.1981, c.405, s.3B:2-5, eff. May 1, 1982; amended 2004, c.132, s.4.
3B:2-6 Oath; affidavit; deposition or proof.
3B:2-6. Any oath, affidavit, deposition or proof required to be made or taken in any proceeding before a surrogate, the surrogate’s court or in the Superior Court, or necessary or proper to be used before the surrogate or the court, may be made and taken before the surrogate or before any individual authorized by law to administer oaths. Qualifications of executors and administrators and acceptances of trusteeships and guardianships may be taken as provided by the rules of the Supreme Court.
L.1981, c.405, s.3B:2-6, eff. May 1, 1982; amended 2004, c.132, s.5.
3B:2-7 Issuance of subpoenas by surrogate.
3B:2-7. A surrogate may issue process of subpoenas to any person within the State to appear and give evidence in any matter pending before the surrogate’s court.
L.1981, c.405, s.3B:2-7, eff. May 1, 1982; amended 2004, c.132, s.6.
3B:2-8 Penalty for failure to obey subpoena.
3B:2-8. Any person subpoenaed as a witness by a surrogate, who does not appear pursuant thereto, or appearing refuses to be sworn or give evidence, without reasonable cause assigned, shall, for every such default or refusal, be subject to a fine of not more than $50.00, as the surrogate’s court issuing the subpoena shall by judgment determine proper to impose. The fine, when collected, shall be paid to the county.
In default of the payment of a fine so imposed, the surrogate’s court by its judgment may commit the witness to the county jail of the county until it is paid or he is sooner discharged.
The judgment of the surrogate’s court imposing a fine or committing a witness to jail shall be reviewable by the Superior Court in the same manner as other judgments of the court are reviewed.
L.1981, c.405, s.3B:2-8. eff. May 1, 1982; amended 2004, c.132, s.7.
3B:3-1 Individuals competent to make a will and appoint a testamentary guardian.
3B:3-1. Any individual 18 or more years of age who is of sound mind may make a will and may appoint a testamentary guardian.
L.1981, c.405, s.3B:3-1, eff. May 1, 1982; amended 2004, c.132, s.8.
3B:3-2 Execution; witnessed wills; writings intended as wills.
3B:3-2. Execution; witnessed wills; writings intended as wills.
a.Except as provided in subsection b. and in N.J.S.3B:3-3, a will shall be:
(1)in writing;
(2)signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction; and
(3)signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will as described in paragraph (2) or the testator’s acknowledgment of that signature or acknowledgment of the will.
b.A will that does not comply with subsection a. is valid as a writing intended as a will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.
c.Intent that the document constitutes the testator’s will can be established by extrinsic evidence, including for writings intended as wills, portions of the document that are not in the testator’s handwriting.
L.1981, c.405, s.3B:3-2, eff. May 1, 1982; amended 2004, c.132, s.9; 2005, c.160, s.2.
3B:3-2.1 Creation, maintenance of will registry; fees.
1. a. The Secretary of State shall create and maintain a will registry in which a testator or his attorney may register information regarding the testator’s will. The information contained in such registry shall include the name of the person making the will, the date the will was made, and sufficient identification of the location of the will at the time of registration. The registry shall not contain a copy of the will.
b.The fee for registration of a will shall be $10.00, which shall be deposited by the Secretary of State in the General Fund.
c.The existence or nonexistence of a registration for a particular will shall not be considered as evidence in any proceeding relating to such will, and the failure to file information about a will in the will registry shall not be a factor in determining the validity of the will.
d.The fee for application to the Secretary of State to conduct a search of the registry shall be $10.00, which shall be deposited by the Secretary of State in the General Fund. Only interested persons and their representatives may conduct a search of the registry. As used in this act, “interested persons” means children, spouses, potential heirs, devisees, fiduciaries, creditors, beneficiaries and any others having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding.
e.The Secretary of State shall not be liable for the accuracy of the representation of the person conducting a search of the registry or for the accuracy of the information contained in the registry.
L.2005,c.97,s.1.
3B:3-2.2 Regulations.
2.The Secretary of State shall promulgate regulations pursuant to the provisions of the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.) to effectuate the provisions of this act.
L.2005,c.97,s.2.
3B:3-3 Writings intended as wills.
3B:3-3. Writings intended as wills.
Although a document or writing added upon a document was not executed in compliance with N.J.S.3B:3-2, the document or writing is treated as if it had been executed in compliance with N.J.S.3B:3-2 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (1) the decedent’s will; (2) a partial or complete revocation of the will; (3) an addition to or an alteration of the will; or (4) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.
L.1981, c.405, s.3B:3-3, eff. May 1, 1982; amended 2004, c.132, s.10; 2005, c.160, s.3.
3B:3-4 Making will self-proved at time of execution.
3B:3-4. Any will executed on or after September 1, 1978 may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized pursuant to R.S.46:14-6.1 to take acknowledgments and proofs of instruments entitled to be recorded under the laws of this State, in substantially the following form:
I, ………., the testator, sign my name to this instrument this …. day of ……., 20…, and being duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am 18 years of age or older, of sound mind, and under no constraint or undue influence.
…………………………………..
Testator
We,…………., the witnesses, sign our names to this instrument, and, being duly sworn, do hereby declare to the undersigned authority that the testator signs and executes this instrument as the testator’s last will and that the testator signs it willingly (or willingly directs another to sign for him), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator’s signing, and that to the best of our knowledge the testator is 18 years of age or older, of sound mind, and under no constraint or undue influence.
………………………………….
Witness
………………………………….
Witness
The State of…………….
County of……………….
Subscribed, sworn to and acknowledged before me by ……………., the testator and subscribed and sworn to before me by ………… and …………., witnesses, this …………. day of……………..
(Signed)………………………..
…………………………..
(Official capacity of officer)
L.1981, c.405, s.3B:3-4, eff. May 1, 1982; amended 1991, c.255; 2004, c.132, s.11.
3B:3-5 Making will self-proved subsequent to time of execution.
3B:3-5. A will executed in compliance with N.J.S.3B:3-2 may at any time subsequent to its execution be made self-proved by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized pursuant to R.S.46:14-6.1 to take acknowledgments and proofs of instruments entitled to be recorded under the laws of this State, attached or annexed to the will in substantially the following form:
The State of
County of
We, , and , the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as his last will and that the testator had signed willingly (or willingly directed another to sign for the testator), and that he executed it as the testator’s free and voluntary act for the purposes therein expressed, and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of his knowledge the testator was at that time 18 years of age or older, of sound mind and under no constraint or undue influence.
Testator
Witness
Witness
Subscribed, sworn to and acknowledged before me by , the testator, and subscribed and sworn to before me by and , witnesses, this day of .
(Signed)
(Official capacity of officer)
L.1981, c.405, s.3B:3-5, eff. May 1, 1982; amended 2004, c.132, s.12.
3B:3-6. Validating acknowledgment
An acknowledgment to make a will self-proved taken on or after September 1, 1978, but before October 11, 1979, pursuant to R.S. 46:14-6, R.S. 46:14-7 or R.S. 46:14-8 to make a will self-proved under N.J.S. 3B:3-4 or N.J.S. 3B:3-5 is a valid acknowledgment, notwithstanding that the certificate of acknowledgment does not have the officer’s official seal affixed thereto.
L.1981, c. 405, s. 3B:3-6, eff. May 1, 1982.
3B:3-7 Who may witness a will.
3B:3-7. Any individual generally competent to be a witness may act as a witness to a will and to testify concerning execution thereof.
L.1981, c.405, s.3B:3-7, eff. May 1, 1982; amended 2004, c.132, s.13.
3B:3-8. Will not invalidated if signed by interested witness
A will or any provision thereof is not invalid because the will is signed by an interested witness.
L.1981, c. 405, s. 3B:3-8, eff. May 1, 1982.
3B:3-9. Laws determining valid execution of will
A written will is validly executed if executed in compliance with N.J.S. 3B:3-2 or N.J.S. 3B:3-3 or its execution was in compliance with the law of the place where it was executed, or with the law of the place where at the time of execution or at the time of death the testator was domiciled, had a place of abode or was a national.
L.1981, c. 405, s. 3B:3-9, eff. May 1, 1982.
3B:3-10. Incorporation by reference
Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.
L.1981, c. 405, s. 3B:3-10, eff. May 1, 1982.
3B:3-11 Identifying devise of tangible personal property by separate writing.
3B:3-11. A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing must be either in the handwriting of the testator or be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator’s death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing which has no significance apart from its effect upon the dispositions made by the will.
L.1981, c.405, s.3B:3-11, eff. May 1, 1982; amended 2004, c.132, s.14.
3B:3-12 Acts and events of independent significance.
3B:3-12. A will may dispose of property by reference to acts and events which have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator’s death. The execution or revocation of a will of another individual is such an event.
L.1981, c.405, s.3B:3-12, eff. May 1, 1982; amended 2004, c.132, s.15.
3B:3-13 Revocation by writing or by act.
3B:3-13. A will or any part thereof is revoked:
a.By the execution of a subsequent will that revokes the previous will or part expressly or by inconsistency; or
b.By the performance of a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator’s conscious presence and by the testator’s direction. For purposes of this subsection, “revocatory act on the will” includes burning, tearing canceling, obliterating or destroying the will or any part of it. A burning, tearing or cancelling is a “revocatory act on the will,” whether or not the burn, tear, or cancellation touched any of the words on the will.
(1)If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.
(2) The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator’s estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator’s death.
(3)The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator’s estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator’s death to the extent they are not inconsistent.
L.1981, c.405, s.3B:3-13, eff. May 1, 1982; amended 2004, c.132, s.16.
3B:3-14 Revocation of probate and non-probate transfers by divorce or annulment; revival by remarriage to former spouse.
3B:3-14. Revocation of probate and non-probate transfers by divorce or annulment; revival by remarriage to former spouse.
a.Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce or annulment, a divorce or annulment:
(1)revokes any revocable:
(a)dispositions or appointment of property made by a divorced individual to his former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual’s former spouse;
(b) provision in a governing instrument conferring a general or special power of appointment on the divorced individual’s former spouse, or on a relative of the divorced individual’s former spouse; and
(c)nomination in a governing instrument of a divorced individual’s former spouse or a relative of the divorced individual’s former spouse to serve in any fiduciary or representative capacity; and
(2)severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship or as tenants by the entireties, transforming the interests of the former spouses into tenancies in common.
In the event of a divorce or annulment, provisions of a governing instrument are given effect as if the former spouse and relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the former spouse died immediately before the divorce or annulment. If provisions are revoked solely by this section, they are revived by the divorced individual’s remarriage to the former spouse or by the revocation, suspension or nullification of the divorce or annulment. No change of circumstances other than as described in this section and in N.J.S.3B:7-1 effects a revocation or severance.
A severance under paragraph (2) of subsection a. does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouse unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.
b.For purposes of this section: (1) “divorce or annulment” means any divorce or annulment, or other dissolution or declaration of invalidity of a marriage including a judgment of divorce from bed and board; (2) “governing instrument” means a governing instrument executed by the divorced individual before the divorce or annulment; (3) “divorced individual “includes an individual whose marriage has been annulled; and (4) “relative of the divorced individual’s former spouse” means an individual who is related to the divorced individual’s former spouse by blood, adoption or affinity and who, after the divorce or annulment, is not related to the divorced individual by blood, adoption or affinity.
c.This section does not affect the rights of any person who purchases property from a former spouse for value and without notice, or receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, which the former spouse was not entitled to under this section, but the former spouse is liable for the amount of the proceeds or the value of the property to the person who is entitled to it under this section.
d.A payor or other third party making payment or transferring an item of property or other benefit according to the terms of a governing instrument affected by a divorce or annulment is not liable by reason of this section unless prior to such payment or transfer it has received at its home or principal address written notice of a claimed revocation, severance or forfeiture under this section.
L.1981, c.405, s.3B:3-14, eff. May 1, 1982; amended 2004, c.132, s.17; 2005, c.160, s.4.
3B:3-15 Revival of revoked will.
3B:3-15. a. Except as otherwise provided in N.J.S.3B:3-14 or as provided in subsections b., c. and d. of this section, a revoked will or codicil shall not be revived except by reexecution or by a duly executed codicil expressing an intention to revive it.
b.If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act described in N.J.S.3B:3-13, the previous will remains revoked unless it is revived. The previous will is revived if there is clear and convincing evidence from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that the testator intended the previous will to take effect as executed.
c.If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act described in N.J.S.3B:3-13, a revoked part of the previous will is revived unless there is clear and convincing evidence from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as executed.
d.If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another, later will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect.
L.1981, c.405, s.3B:3-15, eff. May 1, 1982.
3B:3-16. Methods of altering will
No devise in, or clause of a will may be altered, except by another will or codicil or other writing declaring the alteration executed in the manner in which wills are required by law to be executed.
L.1981, c. 405, s. 3B:3-16, eff. May 1, 1982.
3B:3-17 Probate of will and grant of letters.
3B:3-17. The surrogates of the several counties or the Superior Court may take depositions to wills, admit the same to probate, and grant thereon letters testamentary or letters of administration with the will annexed.
L.1981, c.405, s.3B:3-17, eff. may 1, 1982; amended 2004, c.132, s.19.
3B:3-18. Necessity to probate will to transfer property or nominate executor
To be effective to prove the transfer of any property or to nominate an executor, a will must be admitted to probate.
L.1981, c. 405, s. 3B:3-18, eff. May 1, 1982.
3B:3-19 Proof required to probate will.
3B:3-19. A will executed as provided in N.J.S.3B:3-2 may be admitted to probate by the surrogate upon the proof of one of the attesting witnesses or by some other individual having knowledge of the facts relating to the proper execution of the will by the testator and its attestation by one of the witnesses.
A will executed and acknowledged in the manner provided in N.J.S.3B:3-4, or N.J.S.3B:3-5 may be admitted to probate by the surrogate without further affidavit, deposition or proof.
A writing intended as a will may be admitted to probate only in the manner provided by the Rules Governing the Courts of the State of New Jersey.
L.1981, c.405, s.3B:3-19, eff. May 1, 1982; amended 2004, c.132, s.20.
3B:3-20 Probate of a will of testator who died in military service or within 2 years of discharge.
N.J.S.3B:3-20. When a resident of this State dies while a member of the armed forces of the United State or within 2 years from the date of his discharge from the armed forces and no witness to his will is available in this State to prove the will, either because of death, incapacity, nonresidence, absence, or for any other reason, the will shall be admitted to probate upon proof of the signature of the testator by any two individuals, provided the will was validly executed as provided in N.J.S.3B:3-9, and the will would have been admitted to probate if the witnesses were dead.
L.1981, c.405, s.3B:3-20, eff. May 1, 1982; amended 2004, c.132, s.21.
3B:3-21. Probate of will where witnesses are in service in time of war
When the only living subscribing witness or witnesses, to the will of a resident of this State, is not or are not available in this State to prove the will, because of absence from the State while in the armed forces of the United States or of any ally of the United States, or while in the merchant marine, in time of war or national emergency, the will shall be admitted to probate upon proof of the signatures of the witnesses to the will, provided the will would then have been admitted to probate if the witnesses were dead.
L.1981, c. 405, s. 3B:3-21, eff. May 1, 1982.
3B:3-22. Time for probate of will; preliminary filing
No will shall be admitted to probate until after 10 days from the death of the testator; but the complaint and other papers in any action for the probate of a will may be filed, and the depositions of the witnesses thereto and the qualification of the executor or administrator with the will annexed may be taken at any time subsequent to the death of the testator and before the will is admitted to probate.
L.1981, c. 405, s. 3B:3-22, eff. May 1, 1982.
3B:3-23. Proof of execution required in contested probate action
If an issue as to the execution of a will arises in a contested probate action, the testimony of at least one of the attesting witnesses, if within the State, competent and able to testify, is required. Other evidence is admissible as to the due execution of a will.
L.1981, c. 405, s. 3B:3-23, eff. May 1, 1982.
3B:3-24 Where a will of a resident is to be probated; effect of failure to probate.
3B:3-24. The will of any individual resident within any county of this State at his death may be admitted to probate in the surrogate’s court of the county or in the Superior Court. If the will of any individual resident within the State at his death is probated outside the State, it shall be without effect unless or until probate is granted within the State.
L.1981, c.405, s.3B:3-24, eff. may 1, 1982; amended 2004, c.132, s.22.
3B:3-25. Filing probate record with surrogate of any county
When a will devising real estate has been duly admitted to probate by the Superior Court, any person interested therein may file with the surrogate of any county a certified copy of the will, the complaint or application for probate, the proofs, the judgment or order for probate and the letters testamentary issued thereon. The surrogate shall thereupon record them which record, or a certified copy thereof, shall be received in evidence in any cause involving the title to real estate in that county as if the will had been originally admitted to probate before the surrogate.
L.1981, c. 405, s. 3B:3-25, eff. May 1, 1982.
3B:3-26 Probate of will of nonresident probated in another state or country.
3B:3-26. 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.
L.1981, c.405, s.3B:3-26, eff. May 1, 1982; amended 2004, c.132, s.23.
3B:3-27. Recording of will of nonresident probated in another state or country
A copy of any will or of the record of any will of a decedent not resident in this State at his death, admitted to probate in any state of the United States or other jurisdiction or country, and of the certificate or judgment for probate, and if title to real estate of the decedent depends on the conveyance by an executor, administrator with the will annexed, substituted administrator with the will annexed, trustee or substituted trustee, of the record of the grant of letters testamentary thereon, or of administration, or substitutionary administration, with the will annexed, or of a copy of the letters, attested and certified pursuant to the rules of the Supreme Court or, if it be a record of any state of the United States, exemplified and authenticated according to the act of Congress, heretofore or hereafter filed and recorded in the office of the surrogate of any county in this State, shall have the same force and effect in respect to all real estate whereof the testator died seized, as if the will had been admitted to probate and the letters aforesaid had been issued in this State, provided it appears either from the deposition in the record or the attestation clause, or by a deposition taken under a commission or otherwise, that the will is valid under the laws of this State.
All conveyances of the real estate heretofore or hereafter made by any executor, administrator with the will annexed, substituted administrator with the will annexed, trustee, substituted trustee, or the survivor or survivors of them, or by any devisee or persons claiming under the devisee shall be as valid as if the will had been admitted to probate and letters aforesaid had been issued in this State.
Certified copies of the will, deposition, judgment for probate and letters, or of the record thereof, shall be received in evidence in all the courts of this State.
L.1981, c. 405, s. 3B:3-27, eff. May 1, 1982.
3B:3-28 Probate of will of nonresident decedent where property situated in New Jersey.
3B:3-28. Where the will of any individual not resident in this State at his death has not been admitted to probate in the state, jurisdiction or country in which he then resided and no proceeding is there pending for the probate of the will, and he died owning real estate situate in any county of this State or personal property, or evidence of the ownership thereof, situate therein at the time of probate, the Superior Court or the surrogate’s court may admit the will to probate and grant letters thereon.
L.1981, c.405, s.3B:3-28, eff. May 1, 1982; amended 1997, c.20; 2004, c.132, s.24.
3B:3-28.1 Probate of will of nonresident where laws of decedent’s domicile are discriminatory.
3B:3-28.1. Where the will of any individual who is not resident in this State at the time of his death has not been admitted to probate in the state in which he resided and no proceeding is there pending for the probate of the will, the Superior Court may admit the will to probate and grant letters thereon if the laws of that state discriminate against residents of New Jersey either as a beneficiary or as a fiduciary.
L.1981, c.405, s.3B:3-28.1, eff. May 1, 1982; amended 2004, c.132, s.25.
3B:3-29. Order to compel production of purported will
The Superior Court shall have jurisdiction 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 paper to be lodged with the surrogate of the county for probate.
L.1981, c. 405, s. 3B:3-29, eff. May 1, 1982.
3B:3-30. Allowances by Superior Court to spouse or children pending contest over probate of will
If a contest is pending over the probate of any paper purporting to be a will, the Superior Court may, on application by the widow or widower of the decedent, by any of decedent’s children, or by any children of any of decedent’s deceased children, order the person having the custody of the decedent’s estate to pay out of the income of the estate, pending the contest, an allowance for the support and maintenance of the widow, widower, child or children as the court may deem just; and any further allowance out of the income, or, if need be, out of the corpus, of the estate as may be necessary to meet the expenses incurred or to be incurred in conducting the contest.
To entitle a widow or widower to the benefit of this section the applicant must have been ceremonially married to the decedent and been living with him or her as his or her spouse at decedent’s death.
L.1981, c. 405, s. 3B:3-30, eff. May 1, 1982.
3B:3-31 Judgment for probate; conclusive effect on title to real property after 7 years.
3B:3-31. Where judgment has been or shall be entered by any surrogate’s court in this State or Superior Court of the State, admitting to probate the will of any individual whether or not a resident of the State at his death and 7 years have elapsed after the judgment, the judgment unless set aside, shall, as to all matters adjudicated thereby, be conclusive upon the title to real estate.
L.1981, c.405, s.3B:3-31, eff. May 1, 1982; amended 2004, c.132, s.26.
3B:3-32 Requirement of survival by 120 hours; exceptions; survivorship with respect to future interests.
3B:3-32. a. Except as provided in subsections b. and c., for purposes of construing a will, trust agreement, or other governing instrument, an individual who is not established by clear and convincing evidence to have survived an event, including the death of another individual, by 120 hours is deemed to have predeceased the event.
b.If it is not established by clear and convincing evidence that one of two co-owners with right of survivorship survived the other co-owner by 120 hours, one-half of the property passes as if one had survived by 120 hours and one-half as if the other had survived by 120 hours.
c.If there are more than two co-owners and it is not established by clear and convincing evidence that at least one of them survived the others by 120 hours, the property passes in the proportion that one bears to the whole number of co-owners.
d.The 120 hour survival requirement of subsections a., b. and c. shall not apply if: (1) the will, trust agreement, or other governing instrument, contains some language applicable to the event dealing explicitly with simultaneous deaths or deaths in a common disaster, or requiring survival for a stated time period; (2) application would cause a non-vested property interest or power of appointment to be invalid under a rule against perpetuities concerning an interest created prior to the enactment of P.L. 1999, c. 159 (effective on July 8, 1999); or (3) it is established by clear and convincing evidence that application to multiple governing instruments would result in an unintended failure or duplication of a disposition.
e.For purposes of this section, “co-owners with right of survivorship” includes joint tenants, tenants by the entireties, and other co-owners of property or accounts held under circumstances that entitle one or more to the whole of the property or account on the death of the other or others.
To the extent this section is inconsistent with the “Uniform Simultaneous Death Law” (N.J.S.3B:6-1 et seq.), the provisions of this section shall apply.
L.1981, c.405, s.3B:3-32, eff. May 1, 1982; amended 2004, c.132, s.27.
3B:3-33 Choice of law as to meaning and effect of wills; testator’s intention; rules of construction.
3B:3-33. The meaning and legal effect of a disposition in a will, trust or other governing instrument shall be determined by the local law of a particular state selected in the will, trust or other governing instrument, unless the application of that law is contrary to the provisions relating to the elective share described in N.J.S.3B:8-1 et seq. or any other public policy of this State otherwise applicable to the disposition.
L.1981, c.405, s.3B:3-33, eff. May 1, 1982; amended 2004, c.132, s.29.
3B:3-33.1 Testator’s intention; settlor’s intention; rules of construction applicable to wills, trusts and other governing instruments.
28. a. The intention of a testator as expressed in his will controls the legal effect of his dispositions, and the rules of construction expressed in N.J.S.3B:3-34 through N.J.S.3B:3-48 shall apply unless the probable intention of the testator, as indicated by the will and relevant circumstances, is contrary.
b.The intention of a settlor as expressed in a trust, or of an individual as expressed in a governing instrument, controls the legal effect of the dispositions therein and the rules of construction expressed in N.J.S.3B:34 through N.J.S.3B:3-48 shall apply unless the probable intent of such settlor or of such individual, as indicated by the trust or by such governing instrument and relevant circumstances, is contrary. For purposes of this Title, when construing each of these rules of construction the word “testator” shall include but not be limited to a settlor or a creator of any other governing instrument; the word “will” shall include a trust or other governing instrument; the word “devise” shall include any disposition in a trust or other governing instrument; and the word “devisee” shall include a beneficiary of a trust or other governing instrument.
L.2004,c.132,s.28.
3B:3-34 Will construed to pass all property of testator including after-acquired property.
3B:3-34. Unless a will expressly provides otherwise, it is construed to pass all property the testator owns at death including property acquired after the execution of the will, and all property acquired by the estate after the testator’s death.
L.1981, c.405, s.3B:3-34, eff. May 1, 1982; amended 2004, c.132, s.30.
3B:3-35 Anti-lapse; deceased devisee; class gifts.
3B:3-35 Anti-lapse; deceased devisee; class gifts.
If a devisee who is a grandparent, stepchild or a lineal descendant of a grandparent of the decedent is dead at the time of the execution of the governing instrument, fails to survive the decedent, or is treated as if he predeceased the decedent, any descendants of the deceased devisee who survives the decedent by 120 hours take by representation in place of the deceased devisee. One who would have been a devisee under a class gift if he had survived the decedent is treated as a devisee for purposes of this section whether his death occurred before or after the execution of the governing instrument. For purposes of this section, a”stepchild” means a child of the surviving, deceased or former spouse who is not a child of the decedent.
L.1981, c.405, s.3B:3-35, eff. May 1, 1982; amended 2004, c.132, s.31; 2005, c.160, s.5.
3B:3-36 Failure of testamentary provision; residuary devise to two or more residuary devisees; death of one or more before testator.
3B:3-36. Except as provided in N.J.S.3B:3-35:
a.a devise, other than a residuary devise, that fails for any reason becomes a part of the residue.
b.if the residue is devised to two or more persons, unless a contrary intention shall appear by the will, the share of a residuary devise that fails for any reason passes to the other residuary devisee, or to other residuary devisees in proportion to the interest of each in the remaining part of the residue.
L.1981, c.405, s.3B:3-36, eff. May 1, 1982; amended 2004, c.132, s.32.
3B:3-37. Residuary devise to two or more residuary devisees; death of one or more before testator
When a residuary devise shall be made to two or more persons by the will of any testator, unless a contrary intention shall appear by the will, the share of any residuary devisees dying before the testator and not saved from the lapse by N.J.S. 3B:3-35, or not capable of taking effect because of any other circumstance or cause, shall go to and be vested in the remaining residuary devisees, if any there be, and if more than one, then to the remaining residuary devisees in proportion to their respective shares in the residue.
L.1981, c. 405, s. 3B:3-37, eff. May 1, 1982.
3B:3-38 Construction of words “die without issue” or “die without descendants”.
3B:3-38. In a devise of real or personal property the words “die without issue” or “die without descendants” or “die without lawful issue” or “die without lawful descendants” or “have no issue” or “have no descendants” or other words which may import a want or failure of issue or descendants of an individual in his lifetime, or at his death, or an indefinite failure of his issue or descendants, shall be construed to mean a failure of issue or descendants at the death of the individual, unless a contrary intention shall otherwise appear by the will.
L.1981, c.405, s.3B:3-38, eff. May 1, 1982; amended 2004, c.132, s.33.
3B:3-39. Construction when “heirs and assigns” omitted from devise; fee passed
When a devise of real estate within this State to any devisee omits the words “heirs and assigns” and the will contains no expressions indicating an intent to devise only an estate for life, or the real estate is not further devised after the death of the devisee, the devise shall be deemed to pass an estate in fee simple to the devisee as if the real estate had been devised to the devisee and to his heirs and assigns forever.
L.1981, c. 405, s. 3B:3-39, eff. May 1, 1982.
3B:3-40. Words importing estate in fee not to prevent further devise
In any devise of real or personal property set forth in a will, the giving to one person of an indeterminate or other interest in the property or an estate in fee therein or absolute ownership thereof, together with a power, absolute or otherwise, to dispose of the property, shall not be construed to render void a limitation over of the property to another person which is to take effect in the event that the first named devisee shall not have disposed of the property during his lifetime. In all those cases, the testator’s intent shall be given effect.
L.1981, c. 405, s. 3B:3-40, eff. May 1, 1982.
3B:3-41 Issue and descendants to take by representation.
3B:3-41. Issue and descendants to take by representation.
Where under any governing instrument provision is made for the benefit of issue and descendants and no contrary intention is expressed, the issue or descendants shall take by representation.
L.1981, c.405, s.3B:3-41, eff. May 1, 1982; amended 2004, c.132, s.34; 2005, c.160, s.6.
3B:3-42 Increase in securities, accessions.
3B:3-42. a. If a testator executes a will that devises securities and the testator then owned securities that meet the description in the will, the devise includes additional securities owned by the testator at death to the extent the additional securities were acquired by the testator after the will was executed as a result of the testator’s ownership of the described securities and are securities of any of the following types:
(1)securities of the same organization acquired by reason of action initiated by the organization or any successor, related, or acquiring organization, excluding any acquired by exercise of purchase options;
(2)securities of another organization acquired as a result of a merger, consolidation, reorganization, or other distribution by the organization or any successor, related, or acquiring organization; or
(3)securities of the same organization acquired as a result of a plan of reinvestment.
b.Distributions in cash declared and payable as of a record date before death with respect to a described security, whether paid before or after death, are not part of the devise.
L.1981, c.405, s.3B:3-42, eff. May 1, 1982; amended 2004, c.132, s.35.
3B:3-43 Nonademption of specific devise; sale by or payment of condemnation award or insurance proceeds to guardian of testator or agent.
3B:3-43. If specifically devised property is sold or mortgaged by a guardian for a testator, or by an agent acting within the authority of a durable power of attorney for an incapacitated individual, or if a condemnation award, insurance proceeds or recovery for injury to the property are paid to a guardian for a testator or such agent as a result of condemnation, fire or casualty, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the amount of the unpaid loan, the condemnation award, the insurance proceeds or the recovery. This section does not apply if subsequent to the sale, mortgage, condemnation, casualty, or recovery the guardianship is terminated or the durable power of attorney is revoked by the testator and the testator survives by 1 year the judgment terminating the guardianship or such revocation. The right of the specific devisee under this section is reduced by any right he has under N.J.S.3B:3-44.
L.1981, c.405, s.3B:3-43, eff. May 1, 1982; amended 2004, c.132, s.36.
3B:3-44 Specific devise; right of devisee after sale, condemnation, casualty loss or foreclosure.
3B:3-44. A specific devisee has the right to the remaining specifically devised property in the testator’s estate at death and:
a.Any balance of the purchase price (together with any security interest) owing from a purchaser to the testator at death by reason of sale of the property;
b.Any amount of a condemnation award for the taking of the property unpaid at death;
c.Any proceeds unpaid at death on fire or casualty insurance on, or other recovery for injury to, the property; and
d.Property owned by testator at his death as a result of foreclosure, or obtained in lieu of foreclosure, of the security for a specifically devised obligation.
L.1981, c.405, s.3B:3-44, eff. May 1, 1982; amended 2004, c.132, s.37.
3B:3-45. Exercise of power of appointment
A general residuary clause in a will or a will making general disposition of all of the testator’s property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intention to include the property subject to the power.
L.1981, c. 405, s. 3B:3-45, eff. May 1, 1982.
3B:3-46 Ademption by satisfaction.
3B:3-46. a. Property which a testator gave in his lifetime to a person is treated as a satisfaction of a devise to that person in whole or in part, only if the will provides for deduction of the lifetime gift, or the testator declares in a contemporaneous writing that the value of the gift is to be deducted from the value of the devise or is in satisfaction of the devise, or the devisee acknowledges in writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise.
b.For purpose of partial satisfaction, property given during lifetime is valued as of the time the devisee came into possession or enjoyment of the property or as of the time of death of the testator, whichever occurs first.
c.If the devisee fails to survive the testator, in the case of a substituted devise or a devise saved from lapse, the gift is treated as a full or partial satisfaction of the devise, as appropriate, unless the testator’s contemporaneous writing provides otherwise.
L.1981, c.405, s.3B:3-46, eff. May 1, 1982; amended 2004, c.132, s.38.
3B:3-47. Penalty clause for contesting will
A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.
L.1981, c. 405, s. 3B:3-47, eff. May 1, 1982.
3B:3-48 Construction of generic terms included in class gift terminology.
3B:3-48. a. Adopted individuals and individuals born out of wedlock, and their respective descendants if appropriate to the class, are included in class gifts and other terms of relationship in accordance with the rules for intestate succession. Terms of relationship that do not differentiate relationships by the half blood from those by the whole blood, such as “brothers,” “sisters,” “nieces,” or “nephews,” are construed to include both types of relationships.
b.In addition to the requirements of subsection a., in construing a donative disposition by a transferor who is not the natural parent, an individual born to the natural parent is not considered the child of that parent unless the individual lived while a minor as a regular member of the household of that natural parent or of that parent’s parent, brother, sister, spouse or surviving spouse.
c.In addition to the requirements of subsection a., in construing a dispositive provision by a transferor who is not the adoptive parent, an adopted individual is not considered the child of the adoptive parent unless the adopted individual lived while a minor, either before or after the adoption, as a regular member of the household of the adoptive parent.
L.1981, c.405, s.3B:3-48, eff. May 1, 1982; amended 2004, c.132, s.39.
3B:3-49. Effect of final order of court of another state admitting will to probate or determining validity or construction
A final order of a court of another state admitting a will to probate or determining the validity or construction of a will made in a proceeding involving notice to and an opportunity for contest by all interested persons must be accepted as determinative by the courts of this State if it includes, or is based upon, a finding that the decedent was domiciled at his death in the state where the order was made.
L.1981, c. 405, s. 3B:3-49, eff. May 1, 1982.
3B:4-1. Short title
This chapter shall be known and may be cited as the “New Jersey Testamentary Additions to Trusts Law.”
L.1981, c. 405, s. 3B:4-1, eff. May 1, 1982.
3B:4-2 Devise to trustee of trust created other than by testator’s will.
3B:4-2. A will may validly devise property to the trustee of a trust established or a trust which will be established: (1) during the testator’s lifetime by the testator, or by the testator and some other person, or by some other person including a funded or unfunded life insurance trust, although the settlor has reserved any or all rights of ownership of the insurance contracts, or (2) at the testator’s death by the testator’s devise to the trustee, if the trust is identified in the testator’s will, and its terms are set forth in a written instrument, other than a will, executed before, concurrently with, or after the execution of the testator’s will or in another individual’s will, executed before, concurrently with or after the execution of the testator’s will, if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust.
L.1981, c.405, s.3B:4-2, eff. May 1, 1982; amended 2004, c.132, s.40.
3B:4-3 Devise not invalidated because trust is amendable or revocable.
3B:4-3. A devise made as provided in N.J.S.3B:4-2 shall not be invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator’s death.
L.1981, c.405, s.3B:4-3, eff. May 1, 1982; amended 2004, c.132, s.41.
3B:4-4 Administration of trust.
3B:4-4. Unless the testator’s will provides otherwise, property devised to a trust described in N.J.S.3B:4-2 shall not be deemed to be held under a testamentary trust of the testator, but shall become a part of the trust to which it is devised and shall be administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator’s death.
L.1981, c.405, s.3B:4-4, eff. May 1, 1982; amended 2004, c.132, s.42.
3B:4-5 Lapse of devise.
3B:4-5. Unless the testator’s will provides otherwise, a revocation or termination of the trust before the testator’s death causes the devise to lapse.
L.1981, c.405, s.3B:4-5, eff. May 1, 1982; amended 2004, c.132, s.43.
3B:5-1 Requirement that heir survive decedent by 120 hours.
3B:5-1. For the purposes of intestate succession an individual who is not established by clear and convincing evidence to have survived the decedent by 120 hours is deemed to have predeceased the decedent. This section is not to be applied where its application would result in a taking of intestate estate by the State.
L.1981, c.405, s.3B:5-1, eff. May 1, 1982; amended 2004, c.132, s.44.
3B:5-2 Intestate estate.
3B:5-2. a. Any part of the decedent’s estate not effectively disposed of by his will passes by intestate succession to the decedent’s heirs as prescribed in N.J.S.3B:5-3 through N.J.S.3B:5-14, except as modified by the decedent’s will.
b.A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his intestate share.
L.1981, c.405, s.3B:5-2, eff. May 1, 1982; amended 2004, c.132, s.45.
3B:5-3 Intestate share of decedent’s surviving spouse or domestic partner.
3B:5-3. Intestate share of decedent’s surviving spouse or domestic partner.
The intestate share of the surviving spouse or domestic partner is:
a.The entire intestate estate if:
(1)No descendant or parent of the decedent survives the decedent; or
(2)All of the decedent’s surviving descendants are also descendants of the surviving spouse or domestic partner and there is no other descendant of the surviving spouse or domestic partner who survives the decedent;
b.The first 25% of the intestate estate, but not less than $50,000.00 nor more than $200,000.00, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;
c.The first 25% of the intestate estate, but not less than $50,000.00 nor more than $200,000.00, plus one-half of the balance of the intestate estate:
(1)If all of the decedent’s surviving descendants are also descendants of the surviving spouse or domestic partner and the surviving spouse or domestic partner has one or more surviving descendants who are not descendants of the decedent; or
(2)If one or more of the decedent’s surviving descendants is not a descendant of the surviving spouse or domestic partner.
L.1981, c.405, s.3B:5-3, eff. May 1, 1982; amended 2004, c.132, s.46; 2005, c.331, s.2.
3B:5-4 Intestate shares of heirs other than surviving spouse or domestic partner.
3B:5-4. Intestate shares of heirs other than surviving spouse or domestic partner.
Any part of the intestate estate not passing to the decedent’s surviving spouse or domestic partner under N.J.S.3B:5-3, or the entire intestate estate if there is no surviving spouse or domestic partner, passes in the following order to the individuals designated below who survive the decedent:
a.To the decedent’s descendants by representation;
b. If there are no surviving descendants, to the decedent’s parents equally if both survive, or to the surviving parent, except as provided in section 4 of P.L.2009, c.43 (C.3B:5-14.1);
c.If there are no surviving descendants or parent, to the descendants of the decedent’s parents or either of them by representation;
d.If there is no surviving descendant, parent or descendant of a parent, but the decedent is survived by one or more grandparents, half of the estate passes to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the decedent’s maternal relatives in the same manner; but if there is no surviving grandparent, or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent’s relatives on the other side in the same manner as the half;
e.If there is no surviving descendant, parent, descendant of a parent, or grandparent, but the decedent is survived by one or more descendants of grandparents, the descendants take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation;
f.If there are no surviving descendants of grandparents, then the decedent’s step-children or their descendants by representation.
Amended 2004, c.132, s.47; 2005, c.331, s.3; 2009, c.43, s.3.
3B:5-5.1 Diligent inquiry by fiduciary to find heirs.
1.If it appears to a fiduciary administering an intestate estate that there may be individuals whose names or addresses are unknown who may be entitled to participate in the distribution of the estate, the fiduciary shall make a diligent inquiry, under the circumstances, to identify and locate the individuals. The actions taken by a fiduciary shall be those that have some reasonable likelihood of finding the individuals and are reasonable in cost compared with the amount of the distribution involved.
L.2001,c.109,s.1; amended 2004, c.132, s.48.
3B:5-6 Determining representation.
3B:5-6. a. As used in this section:
(1)”Deceased descendant,” “deceased parent,” or “deceased grandparent” means a descendant, parent or grandparent who either predeceased the decedent or is deemed to have predeceased the decedent under N.J.S.3B:5-1.
(2)”Surviving descendant” means a descendant who neither predeceased the decedent nor is deemed to have predeceased the decedent under N.J.S.3B:5-1.
b.If, under N.J.S.3B:5-4, a decedent’s intestate estate or part thereof passes “by representation” to the decedent’s descendants, the estate or part thereof is divided into as many equal shares as there are: (1) surviving descendants in the generation nearest to the decedent which contains one or more surviving descendants; and (2) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.
c.If, under section c. or d. of N.J.S.3B:5-4, a decedent’s intestate estate or a part thereof passes “by representation” to the descendants of the decedent’s deceased parents or either of them or to the descendants of the decedent’s deceased paternal or maternal grandparents or either of them, the estate or part thereof is divided into as many equal shares as there are: (1) surviving descendants in the generation nearest the deceased parents or either of them, or the deceased grandparents or either of them, that contains one or more surviving descendants; and (2) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share, and their surviving descendants had predeceased the decedent.
L.1981, c.405, s.3B:5-6, eff. May 1, 1982; amended 2004, c.132, s.49.
3B:5-7. Relatives of the half blood
Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
L.1981, c. 405, s. 3B:5-7, eff. May 1, 1982.
3B:5-8 After born heirs.
3B:5-8. After born heirs.
An individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth.
Amended 2004, c.132, s.50; 2005, c.160, s.7.
3B:5-9 Adopted child.
3B:5-9. If, for the purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through or from an individual, the relationships and rights of a minor adopted child shall be those as provided in section 14 of P.L.1977, c.367 (C.9:3-50), and the relationships and rights of an adopted adult shall be as provided in N.J.S.2A:22-3.
Amended 2004, c.132, s.51.
3B:5-10 Establishment of Parent-Child Relationship.
3B:5-10. If, for the purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from an individual, in cases not covered by N.J.S.3B:5-9, an individual is the child of the individual’s parents regardless of the marital state of the individual’s parents, and the parent and child relationship may be established as provided by the “New Jersey Parentage Act,” P.L.1983, c.17 (C.9:17-38 et seq.). The parent and child relationship may be established for purposes of this section regardless of the time limitations set forth in subsection b. of section 8 of P.L.1983, c.17 (C.9:17-45).
Amended 1991, c.22; 1997, c.376, s.1; 2004, c.132, s.52.
3B:5-11 Debt to decedent.
3B:5-11. A debt owed to a decedent is not charged against the intestate share of any individual except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor’s descendants.
Amended 2004, c.132, s.53.
3B:5-12 Aliens not disqualified; individuals related to decedent through two lines.
3B:5-12. a. An individual is not disqualified to take as an heir because he or an individual through whom he claims is or has been an alien.
b.An individual who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship that would entitle the individual to the larger share.
Amended 2004, c.132, s.54.
3B:5-13 Advancements.
3B:5-13. a. If an individual dies intestate as to all or a portion of his estate, property the decedent gave during the decedent’s lifetime to an individual who, at the decedent’s death, is an heir is treated as an advancement against the heir’s intestate share only if: (1) the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement; or (2) the decedent’s contemporaneous writing or the heir’s written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent’s intestate estate.
b.For purposes of subsection a., property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of the decedent’s death, whichever occurs first.
c.If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent’s intestate estate, unless the decedent’s contemporaneous writing or the heir’s written acknowledgment provides otherwise.
Amended 2004, c.132, s.55.
3B:5-14 Tenancy in common; marriage and domestic partnership settlements.
3B:5-14. Tenancy in common; marriage and domestic partnership settlements.
Property descending and distributable under this article to two or more persons shall devolve upon them as tenants in common. Nothing in this article shall be construed or taken to make void or in any way to affect any marriage settlement or settlement concerning a domestic partnership.
Amended 2005, c.331, s.4.
3B:5-14.1 “Minor” defined; loss of right to intestate succession by parent, certain circumstances.
4. a. As used in this section, “minor” means a person under the age of 18 years.
b.A parent of a decedent shall lose all right to intestate succession in any part of the decedent’s estate and all right to administer the estate of the decedent if:
(1)The parent refused to acknowledge the decedent or abandoned the decedent when the decedent was a minor by willfully forsaking the decedent, failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection, or failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death;
(2)The parent was convicted of committing any of the following crimes against the decedent:
(a)N.J.S.2C:14-2, Sexual Assault;
(b)N.J.S.2C:14-3, Criminal Sexual Contact;
(c)N.J.S.2C:24-4, Endangering Welfare of Children;
(3)The parent was convicted of an attempt or conspiracy to murder the decedent; or
(4)The parent abused or neglected the decedent, as defined in subsection c. of section 1 of P.L.1974, c.119 (C.9:6-8.21), and the abuse or neglect contributed to the decedent’s death.
c.If a parent is disqualified from taking a distributive share in the estate of a decedent under this section, the estate shall be distributed as though the parent predeceased the decedent.
L.2009, c.43, s.4.
3B:5-15 Entitlement of spouse or domestic partner; premarital will.
3B:5-15. Entitlement of spouse or domestic partner; premarital will.
a.If a testator’s surviving spouse married the testator after the testator executed the testator’s will, or if a testator’s domestic partner formed a domestic partnership with the testator after the testator executed the testator’s will, the surviving spouse or domestic partner is entitled to receive, as an intestate share, no less than the value of the share of the estate the surviving spouse or domestic partner would have received if the testator had died intestate, unless:
(1)it appears from the will or other evidence that the will was made in contemplation of the testator’s marriage to the surviving spouse or in contemplation of the testator’s formation of a domestic partnership with the domestic partner;
(2)the will expresses the intention that it is to be effective notwithstanding any subsequent marriage or domestic partnership; or
(3)the testator provided for the spouse or domestic partner by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.
b.In satisfying the share provided by this section, devises made by the will to the testator’s surviving spouse or domestic partner, if any, are applied first, and other devises shall abate ratably and in proportion to their respective interests therein.
c.Notwithstanding any other provision of law to the contrary, this section shall apply only to wills executed on or after September 1, 1978.
Amended 2004, c.132, s.56; 2005, c.331, s.5.
3B:5-16 Omitted children.
3B:5-16. a. Except as provided in subsection b., if a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted after-born or after-adopted child receives a share in the estate as follows;
(1)If the testator had no child living when he executed the will, an omitted after-born or after-adopted child receives a share in the estate equal in value to that which the child would have received had the testator died intestate, unless the will devised all or substantially all of the estate to the other parent of the omitted child or to a trust primarily for the benefit of that other parent and that other parent survives the testator and is entitled to take under the will.
(2)If the testator had one or more children living when he executed the will, and the will devised property or an interest in property to one or more of the then-living children, an omitted after-born or after-adopted child is entitled to share in the testator’s estate as follows:
(a)the portion of the testator’s estate in which the omitted after-born or after-adopted child is entitled to share is limited to devises made to the testator’s then-living children under the will.
(b)the omitted after-born or after-adopted child is entitled to receive the share of the testator’s estate, as limited in subparagraph (a), that the child would have received had the testator included all omitted after-born and after-adopted children with the children to whom devises were made under the will and had given an equal share of the estate to each child.
(c)to the extent feasible, the interest granted an omitted after-born or after-adopted child under this section must be of the same character, whether equitable or legal, present or future, as that devised to the testator’s then-living children under the will.
(d)in satisfying a share provided by this paragraph, devises to the testator’s children who were living when the will was executed abate ratably. In abating the devises of the then-living children, the court shall preserve to the maximum extent possible the character of the testamentary plan adopted by the testator.
b.Neither subsection a. (1) nor subsection a. (2) applies if:
(1)it appears from the will that the omission was intentional; or
(2)the testator provided for the omitted after-born or after-adopted child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.
c.If at the time of execution of the will the testator fails to provide in his will for a living child solely because he believes the child to be dead, the child is entitled to a share in the estate as if the child were an omitted after-born or after-adopted child.
d.The share provided by subsection a. (1) shall be taken from devisees under the will ratably and in proportion to their respective interests therein.
Amended 2004, c.132, s.57.
3B:6-1. Short title
This chapter shall be known and may be cited as the “Uniform Simultaneous Death Law.”
L.1981, c. 405, s. 3B:6-1, eff. May 1, 1982.
3B:6-2. Disposition of property of persons dying simultaneously
Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this chapter.
L.1981, c. 405, s. 3B:6-2, eff. May 1, 1982.
3B:6-3. Division of property, two or more beneficiaries
Where two or more beneficiaries are designated to take successively by reason of survivorship under another person’s disposition of property and there is no sufficient evidence that these beneficiaries have died otherwise than simultaneously, the property thus disposed of shall be divided into as many equal portions as there are successive beneficiaries and these portions shall be distributed respectively to those who would have taken in the event that each designated beneficiary had survived.
L.1981, c. 405, s. 3B:6-3, eff. May 1, 1982.
3B:6-4. Division of property, joint tenants or tenants by the entirety
Where there is no sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously, the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. If there are more than two joint tenants and all of them have so died, the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants.
L.1981, c. 405, s. 3B:6-4, eff. May 1, 1982.
3B:6-5. Distribution of proceeds of life or accident policies
Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.
L.1981, c. 405, s. 3B:6-5, eff. May 1, 1982.
3B:6-6. Chapter not to apply in certain cases
This chapter shall not apply to a devolution of property of a decedent under a will or upon intestacy, where the law provides that in order to take on the devolution, a person shall survive the decedent by 120 hours, living trusts, deeds, or contracts of insurance, wherein provision has been made for distribution of property different from the provisions of this chapter.
L.1981, c. 405, s. 3B:6-6, eff. May 1, 1982.
3B:6-7. Construction and interpretation
This chapter shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states which enact it.
L.1981, c. 405, s. 3B:6-7, eff. May 1, 1982.
3B:7-1.1 Effect of intentional killing on intestate succession, wills, trusts, joint assets, life insurance and beneficiary designations.
58.Effect of intentional killing on intestate succession, wills, trusts, joint assets, life insurance and beneficiary designations.
a.An individual who is responsible for the intentional killing of the decedent forfeits all benefits under this title with respect to the decedent’s estate, including an intestate share, an elective share, an omitted spouse’s, domestic partner’s or child’s share, exempt property and a family allowance. If the decedent died intestate, the decedent’s intestate estate passes as if the killer disclaimed his share.
b.The intentional killing of the decedent:
(1)revokes any revocable (a) disposition or appointment of property made by decedent to the killer in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the killer, (b) provision in a governing instrument conferring a general or special power of appointment on the killer or a relative of the killer, and (c) nomination in a governing instrument of the killer or a relative of the killer, nominating or appointing the killer or a relative of the killer to serve in any fiduciary or representative capacity; and
(2)severs the interests of the decedent and the killer in property held by them at the time of the killing as joint tenants with the right of survivorship or as tenants by the entireties, transforming the interests of the decedent and killer into tenancies in common.
c.For purposes of this chapter: (1) “governing instrument” means a governing instrument executed by the decedent; and (2) “relative of the killer” means an individual who is related to the killer by blood, adoption or affinity and who is not related to the decedent by blood or adoption or affinity.
L.2004,c.132,s.58; amended 2005, c.160, s.8; 2005, c.331, s.6.
3B:7-1.2 Effect of revocation.
59.Provisions of a governing instrument are given effect as if the killer or relative of the killer disclaimed all provisions revoked by this chapter or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the killer or relative of the killer predeceased the decedent.
L.2004,c.132,s.59.
3B:7-5 Other acquisitions of property by decedent’s killer.
3B:7-5. Any other acquisition of property or interest by the decedent’s killer or by a relative of the killer not covered by this chapter shall be treated in accordance with the principle that a killer or a relative of a killer cannot profit from the killer’s wrongdoing.
Amended 2004, c.132, s.60.
3B:7-6 Effect of final judgment of conviction.
3B:7-6. A final judgment of conviction establishing responsibility for the intentional killing of the decedent is conclusive for purposes of this chapter. In the absence of such a conviction the court may determine by a preponderance of evidence whether the individual was responsible for the intentional killing of the decedent for purposes of this chapter.
Amended 2004, c.132, s.61.
3B:7-7 Rights of purchasers; protection of payors and other third parties.
3B:7-7. This chapter does not affect the rights of any person who, before rights under this chapter have been adjudicated, purchases from the killer for value and without notice or receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation which the killer would have acquired except for this chapter, but the killer is liable for the amount of the proceeds or the value of the property. A payor or other third party making payment or transferring an item of property or other benefit according to the terms of a governing instrument affected by an intentional killing is not liable by reason of this chapter unless prior to such payment or transfer it has received at its home office or principal address written notice of a claimed forfeiture or revocation under this chapter.
Amended 2004, c.132, s.62.
3B:8-1 Elective share of surviving spouse or domestic partner of person dying domiciled in this State; conditions.
3B:8-1. Elective share of surviving spouse or domestic partner of person dying domiciled in this State; conditions.
If a married person or person in a domestic partnership dies domiciled in this State, on or after May 28, 1980, the surviving spouse or domestic partner has a right of election to take an elective share of one-third of the augmented estate under the limitations and conditions hereinafter stated, provided that at the time of death the decedent and the surviving spouse or domestic partner had not been living separate and apart in different habitations or had not ceased to cohabit as man and wife, either as the result of judgment of divorce from bed and board or under circumstances which would have given rise to a cause of action for divorce or nullity of marriage to a decedent prior to his death under the laws of this State.
Amended 2005, c.331, s.7.
3B:8-2 Elective share of surviving spouse or domestic partner of person dying not domiciled in this State.
3B:8-2. Elective share of surviving spouse or domestic partner of person dying not domiciled in this State.
If a married person or person in a domestic partnership not domiciled in this State dies, the right, if any, of the surviving spouse or domestic partner to take an elective share in property in this State is governed by the law of the decedent’s domicile at death.
Amended 2005, c.331, s.8.
3B:8-3 Meaning of “augmented estate.”
3B:8-3. Meaning of “augmented estate.”
The “augmented estate” means the estate reduced by funeral and administration expenses, and enforceable claims, to which is added the value of property transferred by the decedent at any time during marriage, or during a domestic partnership, to or for the benefit of any person other than the surviving spouse or domestic partner, to the extent that the decedent did not receive adequate and full consideration in money or money’s worth for the transfer, if the transfer is of any of the following types:
a.Any transfer made after May 28, 1980, under which the decedent retained at the time of his death the possession or enjoyment of, or right to income from, the property;
b.Any transfer made after May 28, 1980, to the extent that the decedent retained at the time of his death a power, either alone or in conjunction with any other person, to revoke or to consume, invade or dispose of the principal for his own benefit;
c.Any transfer made after May 28, 1980, whereby property is held at the time of decedent’s death by decedent and another with right of survivorship;
d.Any transfer made, after May 28, 1980, if made within 2 years of death of the decedent, to the extent that the aggregate transfers to any one donee in either of the years exceed $3,000.00.
Amended 2005, c.331, s.9.
3B:8-4. Valuing property transferred
Property transferred in the manner set forth in N.J.S. 3B:8-3 is valued as of the decedent’s death except that property given irrevocably to a donee during the lifetime of the decedent is valued as of the date the donee came into possession or enjoyment of the property if that occurs first.
L.1981, c. 405, s. 3B:8-4, eff. May 1, 1982.
3B:8-5 Transfers excluded.
3B:8-5. Transfers excluded.
Any transfer of property shall be excluded from the augmented estate under N.J.S. 3B:8-3, if made with the written consent or joinder of the surviving spouse or domestic partner. There shall also be excluded from the augmented estate any life insurance, accident insurance, joint annuity or pension payable to a person other than the surviving spouse or domestic partner.
Amended 2005, c.331, s.10.
3B:8-6 Other property to be included in augmented estate.
3B:8-6. Other property to be included in augmented estate.
There shall also be included in the augmented estate:
a.The value of property owned by the surviving spouse or domestic partner at the time of, or as a result of, the decedent’s death to the extent that the property is derived from the decedent by means other than by testate or intestate succession without a full consideration in money or money’s worth; and
b.The value of the property described in subsection a. hereof which has been transferred by the surviving spouse or domestic partner at any time during marriage or domestic partnership without a full consideration in money or money’s worth to any person other than the decedent which would have been includable in the spouse’s or domestic partner’s augmented estate if the surviving spouse or domestic partner had predeceased the decedent.
Income earned by included property prior to the decedent’s death is not treated as property derived from the decedent.
Amended 2005, c.331, s.11.
3B:8-7 Property derived from decedent.
3B:8-7. Property derived from decedent.
For the purposes of N.J.S. 3B:8-6, property derived from the decedent includes, but is not limited to, any beneficial interest of the surviving spouse or domestic partner in a trust created by the decedent during his lifetime, any property appointed to the spouse or domestic partner by the decedent’s exercise of a general or special power of appointment also exercisable in favor of others than the spouse or domestic partner, any proceeds of insurance, including accidental death benefits on the life of the decedent attributable to premiums paid by him, any lump sum immediately payable and the commuted value of the proceeds of annuity contracts under which the decedent was the primary annuitant attributable to premiums paid by him, the commuted value of amounts payable after the decedent’s death under any public or private pension, disability compensation, death benefit or retirement plan, exclusive of the Federal Social Security system, by reason of service performed or disabilities incurred by the decedent, the value of the share of the surviving spouse or domestic partner resulting from rights in community property acquired in any other state formerly owned with the decedent and the value of any rights of dower and curtesy. Premiums paid by the decedent’s employer, his partner, a partnership of which he was a member, or his creditors, are deemed to have been paid by the decedent.
Amended 2005, c.331, s.12.
3B:8-8 Valuation of property derived from decedent.
3B:8-8. Valuation of property derived from decedent.
For the purposes of valuing property derived from the decedent as provided in N.J.S. 3B:8-6:
a.Property owned by the spouse or domestic partner at the decedent’s death is valued as of the date of decedent’s death; and
b.Property transferred by the spouse or domestic partner is valued at the time the transfer became irrevocable, or at the decedent’s death, whichever occurs first.
Amended 2005, c.331, s.13.
3B:8-9 Presumption as to property owned or previously transferred by spouse or domestic partner at decedent’s death.
3B:8-9. Presumption as to property owned or previously transferred by spouse or domestic partner at decedent’s death.
Property owned by the surviving spouse or domestic partner as of the decedent’s death, or previously transferred by the surviving spouse or domestic partner, is presumed to have been derived from the decedent except to the extent that any party in interest establishes that it was derived from another source.
Amended 2005, c.331, s.14.
3B:8-10 Waiving right to an elective share.
3B:8-10. Waiving right to an elective share.
The right of election of a surviving spouse or domestic partner and the rights of the surviving spouse or domestic partner may be waived, wholly or partially, before or after marriage before, on or after May 28, 1980, by a written contract, agreement or waiver, signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of “all rights” (or equivalent language) in the property or estate of a present or prospective spouse or domestic partner or a complete property settlement entered into after or in anticipation of separation, divorce or termination of a domestic partnership is a waiver of all rights to an elective share by each spouse or domestic partner in the property of the other and a renunciation by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.
Amended 2005, c.331, s.15.
3B:8-11 Who may exercise the right to take an elective share.
3B:8-11. Who may exercise the right to take an elective share.
The right of election to take an elective share by a surviving spouse or domestic partner may be exercised only during his lifetime. In the case of a surviving spouse or domestic partner for whom the court has appointed a guardian to manage his estate, the right of election may be exercised only by order of the court making the appointment after finding that the election is necessary to provide adequate support of the surviving spouse or domestic partner during his probable life expectancy.
Amended 2005, c.331, s.16.
3B:8-12 Filing complaint for elective share; extension of time.
3B:8-12. Filing complaint for elective share; extension of time.
The surviving spouse or domestic partner may elect to take his elective share in the augmented estate by filing a complaint in the Superior Court within 6 months after the appointment of a personal representative of the decedent’s estate. The court may, before the time for election has expired and upon good cause shown by the surviving spouse or domestic partner, extend the time for election upon notice to persons interested in the estate and to distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share.
Amended 2005, c.331, s.17.
3B:8-13 Notice of hearing.
3B:8-13. Notice of hearing.
The surviving spouse or domestic partner shall give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share.
Amended 2005, c.331, s.18.
3B:8-14 Withdrawal of demand for an elective share.
3B:8-14. Withdrawal of demand for an elective share.
The surviving spouse or domestic partner may withdraw his demand for an elective share at any time before entry of a final judgment by the court.
Amended 2005, c.331, s.19.
3B:8-15. Fixing amount of elective share; payment of elective share
The court shall determine the amount of the elective share and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate in the manner as hereinafter set forth in this chapter. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than he would have been if relief had been secured against all persons subject to contribution.
L.1981, c. 405, s. 3B:8-15, eff. May 1, 1982.
3B:8-16. Enforcing judgment
The judgment of the court made pursuant to N.J.S. 3B:8-15 may be enforced as other judgments are enforced by law.
L.1981, c. 405, s. 3B:8-16, eff. May 1, 1982.
3B:8-17. Value of surviving spouse’s or domestic partner’s interest in any life estate.
3B:8-17. Value of surviving spouse’s or domestic partner’s interest in any life estate.
In an action for an elective share, the electing spouse’s or domestic partner’s total or proportional beneficial interest in any life estate in real or personal property or in any trust shall be valued at one-half of the total value of the property or trust or of the portion of the property or trust subject to the life estate.
Amended 2005, c.331, s.20.
3B:8-18 Satisfaction of elective share.
3B:8-18. Satisfaction of elective share.
The amount of the surviving spouse’s or domestic partner’s elective share shall be satisfied by applying:
a.The value of all property, estate or interest therein, owned by the surviving spouse or domestic partner in his own right at the time of the decedent’s death from whatever source acquired, or succeeded to by the surviving spouse or domestic partner as a result of decedent’s death notwithstanding that the property, estate or interest or part thereof, succeeded to by the surviving spouse or domestic partner as the result of decedent’s death has been renounced by the surviving spouse or domestic partner;
b.The value of the property described in subsection b. of N.J.S. 3B:8-6, and
c.The remaining property of the augmented estate is so applied that liability for the balance of the elective share of the surviving spouse or domestic partner is equitably apportioned among the recipients of the augmented estate in proportion to the value of their interests therein.
Amended 2005, c.331, s.21.
3B:8-19 Persons subject to contribution.
3B:8-19. Persons subject to contribution.
Only original transferees from, or appointees of, the decedent and their donees, to the extent the donees have the property or its proceeds, are subject to the contribution to make up the elective share of the surviving spouse or domestic partner. A person liable to contribution may choose to give up the property transferred to him or to pay its value as fixed in the manner provided in N.J.S. 3B:8-4.
Amended 2005, c.331, s.22.
3B:9-1 Definitions.
3B:9-1. As used in this chapter:
a.A “present interest” is one to take effect in immediate possession, use or enjoyment without the intervention of a preceding estate or interest or without being dependent upon the happening of any event or thing;
b.A “future interest” is one to take effect in possession, use or enjoyment dependent upon the termination of an intervening estate or interest or the happening of any event or thing;
c.A “devisee” means any person designated in a will to receive a devise, but does not mean a trustee or trust designated in a will to receive a devise;
d.The “effective date” is the date on which a property right vests, or a contract right arises, even though the right is subject to divestment;
e.”Joint property” is property that is owned by two or more persons with rights of survivorship and includes a tenancy by the entirety, a joint tenancy, a joint tenancy with rights of survivorship and a joint life estate with contingent remainder in fee. For purposes of this chapter, joint property is deemed to consist of a present interest and a future interest. The future interest is the right of survivorship;
f.”Joint tenant” is the co-owner of joint property.
Amended 2004, c.132, s.63.
3B:9-2 Disclaimer of an interested party.
3B:9-2. a. Any person who is an heir, or a devisee or beneficiary under a will or testamentary trust, or appointee under a power of appointment exercised by a will or testamentary trust, including a person succeeding to a disclaimed interest, may disclaim in whole or in part any property or interest therein, including a future interest, by delivering and filing a disclaimer under this chapter.
b.Any person who is a grantee, donee, surviving joint tenant, surviving party to a P.O.D. account or a trust deposit account, person succeeding to a disclaimed interest, beneficiary under a nontestamentary instrument or contract, appointee under a power of appointment exercised by a nontestamentary instrument, or a beneficiary under an insurance policy, may disclaim in whole or in part any such property or interest therein by delivering, and if required by N.J.S. 3B:9-7, by filing, a written disclaimer under this chapter.
c.A surviving joint tenant may disclaim as a separate interest any property or interest therein devolving to him by right of survivorship without regard to the extent, if any, the surviving joint tenant contributed to the creation of the joint property interest.
d.A disclaimer may be of a pecuniary or a fractional share, expressed as either a percentage or dollar amount, specific property or any limited interest or estate.
Amended 2004, c.132, s.64.
3B:9-3 Requirements of a disclaimer.
3B:9-3. a. A disclaimer shall be in writing, signed and acknowledged by the person disclaiming, and shall:
(1)Describe the property, interest, power or discretion disclaimed;
(2)If the property interest disclaimed is real property, identify the municipality and county in which the real property is situated; and
(3)Declare the disclaimer and the extent thereof.
b.The disclaimer shall be made within the time prescribed by section 68 of P.L.2004, c.132 (C.3B:9-4.2).
Amended 2004, c.132, s.65.
3B:9-4 Disclaimer by a fiduciary of an interest in property.
3B:9-4. a. A fiduciary or agent acting on behalf of a principal within the express, general or implied authority of a power of attorney, may disclaim property or any interest therein.
b.Except as provided in subsection c. of this section, such disclaimer shall not be effective unless, prior thereto, the fiduciary or agent has been authorized to disclaim by the court having jurisdiction over the fiduciary or the principal after finding that such disclaimer is advisable and will not materially prejudice the rights of: (1) creditors, devisees, heirs or beneficiaries of the estate; (2) beneficiaries of the trust; or (3) the minor, the incapacitated individual, the conservatee or the principal for whom such fiduciary or agent acts.
c.If the governing instrument expressly authorizes the fiduciary or the agent to disclaim, the disclaimer by the fiduciary or agent shall be effective without court authorization.
Amended 2004, c.132, s.66.
3B:9-4.1 Disclaimer by a fiduciary of a power of discretion.
67. a. Any fiduciary, including an agent acting on behalf of a principal within the implied or general authority of a power of attorney, may disclaim any power or discretion held by such fiduciary in a fiduciary capacity. Unless the governing instrument specifically authorizes the fiduciary to disclaim such power or discretion without obtaining court authorization to do so, the disclaimer by the fiduciary shall not be effective unless, prior thereto, such fiduciary has been authorized to disclaim by the court having jurisdiction over the fiduciary after finding that it is advisable and will not materially prejudice the rights of: (1) devisees, heirs, or beneficiaries of the decedent; (2) the minor, the incapacitated individual, the conservatee, or the principal; or (3) the beneficiaries of the trust.
b.Unless expressly authorized by the court or by the governing instrument:
(1)Any disclaimer under this section shall be personal to the fiduciary so disclaiming and shall not constitute a disclaimer by a co-fiduciary or a successor or substituted fiduciary of such power or discretion;
(2)No disclaimer shall affect the rights of: (a) devisees, heirs or beneficiaries of the decedent; (b) the minor, the incapacitated individual, the conservatee, or the principal; or (c) the beneficiaries of the trust.
L.2004,c.132,s.67.
3B:9-4.2 Time for disclaiming.
68.Time for disclaiming. a. The disclaimer of an interest in property may be delivered, and if required by this chapter filed, at any time after the effective date of the governing instrument, or in the case of an intestacy, at any time after the death of the intestate decedent, and must be delivered, and if required by this chapter filed, before the right to disclaim is barred by N.J.S.3B:9-9. With respect to joint property, the barring of the right to disclaim the present interest does not bar the right to disclaim the future interest.
b.The disclaimer of a power or discretion by a fiduciary, including an agent acting on behalf of a principal within the implied or general authority of a power of attorney, in a fiduciary capacity may be made at any time, before or after exercise.
L.2004,c.132,s.68; amended 2005, c.160, s.9.
3B:9-6 Delivering and filing disclaimer.
3B:9-6. a. The disclaimer of an interest by an intestate heir, or a person who is a devisee or beneficiary under a will or a testamentary trust or who is an appointee under a power of appointment exercised by a will or testamentary trust, including a person succeeding to a disclaimed interest, shall be filed in the office of the surrogate or clerk of the Superior Court in which proceedings have been commenced or will be commenced for the administration of the estate of the decedent or deceased donee of the power of appointment. A copy of the disclaimer shall also be delivered to any personal representative, or other fiduciary of the decedent or to the donee of the power or to the holder of the legal title to which the interest relates. The fiduciary shall promptly notify the person or persons who take the disclaimed interest, although any such failure to provide the notice required herein shall not affect the validity of the disclaimer.
b.The disclaimer of an interest in property, other than property passing under or pursuant to a will or testamentary trust shall be delivered to the fiduciary, payor or other person having legal title to or possession of the property or interest disclaimed or who is entitled thereto in the event of disclaimer. Any fiduciary, payor or other person having title to or possession of the property or interest who receives such disclaimer shall promptly notify the person or persons who take the disclaimed interest, although any such failure to provide the notice required herein shall not affect the validity of the disclaimer.
c.In the case of a disclaimer by a fiduciary of a power or discretion:
(1)If such disclaimer is made after court authorization, the fiduciary shall deliver a copy to such person or persons and in such manner as shall be directed by the court; or
(2)If such disclaimer is made without court authorization pursuant to N.J.S.3B:9-4(a), the fiduciary shall deliver a copy to all co-fiduciaries, but if there are none, then to all persons whose property interests are affected by the disclaimer.
d.In the case of a will or testamentary trust or power of appointment under a will or testamentary trust, if real property or any interest therein is disclaimed, the surrogate or clerk of the Superior Court, as the case may be, shall forthwith forward a copy of the disclaimer for filing in the office of the clerk or register of deeds and mortgages of the county in which the real property is situated. In the case of a nontestamentary instrument or contract, if real property or any interest therein is disclaimed, the original thereof shall be filed in the office of the clerk or register of deeds and mortgages of the county in which the real property is situated.
e.For the purposes of this section, delivery may be effected: (1) in person; (2) by registered or certified mail; or (3) by another means which is reasonably likely to accomplish delivery.
L.2004,c.132,s.69.
3B:9-7 Recording of disclaimer where real property or interest therein is disclaimed.
3B:9-7. Each county clerk or register of deeds and mortgages shall provide a book to be entitled “Disclaimers,” so arranged that he may record therein:
a.The name of the disclaimant;
b.The name of the decedent or the name of the donee of the power of appointment, the name of the trustee or other person having legal title to, or possession of, the property or interest disclaimed or entitled thereto in the event of disclaimer or the name of the donee of the power of appointment;
c.The location of the property;
d.The file number of the county clerk’s office or the office of register of deeds and mortgages indorsed upon each disclaimer filed;
e.The date of filing the disclaimer.
The county clerk or the register of deeds and mortgages shall maintain in the record an alphabetical index of the names of all disclaimants stated in any disclaimer file, and also keep in his office for public inspection, all disclaimers so filed therein.
Amended 2004, c.132, s.70.
3B:9-8 Effect of disclaimer.
3B:9-8 Effect of disclaimer. A disclaimer acts as a nonacceptance of the disclaimed interest, rather than as a transfer of the disclaimed interest. The disclaimant is treated as never having received the disclaimed interest. Unless a governing instrument otherwise provides, the property or interest disclaimed devolves:
a.As to a present interest:
(1)in the case of an intestacy, a will, a testamentary trust or a power of appointment exercised by a will or testamentary trust, as if the disclaimant had predeceased the decedent or, if the disclaimant is designated to take under a power of appointment exercised by a will or testamentary instrument, as if the disclaimant had predeceased the donee of the power. If by law or under the will or testamentary trust the descendants of the disclaimant would take the disclaimant’s share by representation were the disclaimant to predecease the decedent, then the disclaimed interest devolves by representation to the descendants of the disclaimant who survive the decedent; and
(2)in the case of a nontestamentary instrument or contract, other than a joint property interest, as if the disclaimant had died before the effective date of the instrument or contract. If by law or under the nontestamentary instrument or contract the descendants of the disclaimant would take the disclaimant’s share by representation were the disclaimant to predecease the effective date of the instrument, then the disclaimed interest devolves by representation to the descendants of the disclaimant who survive the effective date of the instrument.
(3)in the case of joint property created by a will, testamentary trust or non-testamentary instrument: (a) if the disclaimant is the only living owner, the disclaimed interest devolves to the estate of the last to die of the other joint owners; or (b) if the disclaimant is not the only living owner, the disclaimed interest devolves equally to the living joint owners, or all to the other living owner, if there is only one living owner.
b.As to a future interest:
(1)In the case of a will or testamentary trust or a power of appointment exercised by a will or testamentary trust, as if the disclaimant had died before the event determining that the taker of the property or interest is finally ascertained and his interest is vested; and
(2)In the case of a nontestamentary instrument or contract, as if the disclaimant had died before the event determining that the taker of the property or interest had become finally ascertained and the taker’s interest is vested; and
(3)Notwithstanding the foregoing, a future interest that is held by the disclaimant who also holds the present interest and which takes effect at a time certain, such as a fixed calendar date or the disclaimant’s attainment of a certain age, is not accelerated by the disclaimer and continues to take effect at the time certain.
c.Except as provided in subsection b. of this section, a disclaimer relates back for all purposes to the date of death of the decedent or the donee of the power or the effective date of the nontestamentary instrument or contract.
Amended 2004, c.132, s.71; 2005, c.160, s.10.
3B:9-9 Bar of right to disclaim.
3B:9-9. Bar of right to disclaim.
a.The right of an individual to disclaim property or any interest therein is barred by:
(1)an assignment, conveyance, encumbrance, pledge or transfer of the property or interest or a contract therefor; or
(2)a written waiver of the right to disclaim; or
(3)an acceptance of the property or interest or a benefit under it after actual knowledge that a property right has been conferred; or
(4)a sale of the property or interest that was seized under judicial process before the disclaimer is made; or
(5)the expiration of the permitted applicable perpetuities period; or
(6)a fraud on the individual’s creditors as set forth in the “Uniform Fraudulent Transfer Act” (R.S.25:2-20 et seq.).
b.The disclaimant shall not be barred from disclaiming all or any part of the balance of the property where the disclaimant has received a portion of the property and there still remains an interest which the disclaimant is yet to receive.
c.A bar to the right to disclaim a present interest in joint property does not bar the right to disclaim a future interest in that property.
d.The right to disclaim may be barred to the extent provided by other applicable statutory law.
Amended 1988, c.74, s.2; 2004, c.132, s.72; 2005, c.160, s.11.
3B:9-10 Binding effect of disclaimer or waiver.
3B:9-10. Binding effect of disclaimer or waiver.
The disclaimer or written waiver of the right to disclaim a property interest shall be binding upon the disclaimant or the individual waiving and all individuals claiming by, through or under him.
Amended 2004, c.132, s.73; 2005, c.160, s.12.
3B:9-11 Spendthrift provision not to affect right to disclaim.
3B:9-11. The right to disclaim a property interest exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction or any restriction or limitation on the right to disclaim a property interest contained in the governing instrument.
Amended 2004, c.132, s.74.
3B:9-12 Right to disclaim, etc.; under other law not abridged.
3B:9-12. Right to disclaim, etc.; under other law not abridged. This chapter does not abridge the right of an individual to waive, release, disclaim or renounce property or an interest therein under any other statute or law.
Amended 2004, c.132, s.75; 2005, c.160, s.13.
3B:9-13 Extension of time to disclaim interest existing on February 28, 1980.
3B:9-13. Extension of time to disclaim interest existing on February 28, 1980.
a.An interest in property existing on February 28, 1980, as to which, if a present interest, the time for filing a disclaimer under this chapter has not expired, or if a future interest, the interest has not become indefeasibly vested or the taker finally ascertained, may be disclaimed within 9 months after February 28, 1980.
b.An interest in property existing on the effective date of this chapter as amended and supplemented by P.L.2004, c.132 (C.3B:3-33.1 et al.) as to which the right to disclaim has not been barred by prior law may be disclaimed at any time before the right to disclaim is barred by N.J.S.3B:9-9.
Amended 2004, c.132, s.76; 2005, c.160, s.14.
3B:9-14 Federal law.
79.The provisions of this chapter, as amended and supplemented by P.L.2004, c.132 (C.3B:3-33.1 et al.) are not intended to enlarge, limit, modify or otherwise affect the federal requirements for a qualified disclaimer under 26 U.S.C. section 2518 or 26 U.S.C. section 2046.
L.2004,c.132,s.79.
3B:10-1. Grant of letters of administration
The surrogate’s court of the county in which a decedent resided at the time of his death, or the Superior Court, may grant letters of general administration on the estate of the decedent.
L.1981, c. 405, s. 3B:10-1, eff. May 1, 1982.
3B:10-2 To whom letters of administration granted.
3B:10-2. To whom letters of administration granted.
If any person dies intestate, administration of the intestate’s estate shall be granted to the surviving spouse or domestic partner of the intestate, if he or she will accept the administration, and, if not, or if there be no surviving spouse or domestic partner, then to the remaining heirs of the intestate, or some of them, if they or any of them will accept the administration, and, if none of them will accept the administration, then to any other person as will accept the administration.
If the intestate leaves no heirs justly entitled to the administration of his estate, or if his heirs shall not claim the administration within 40 days after the death of the intestate, the Superior Court or surrogate’s court may grant letters of administration to any fit person applying therefor.
Amended 2005, c.331, s.23.
3B:10-3 When spouse or domestic partner entitled to assets without administration.
3B:10-3. When spouse or domestic partner entitled to assets without administration.
Where the total value of the real and personal assets of the estate of an intestate will not exceed $20,000.00, the surviving spouse or domestic partner upon the execution of an affidavit before the Surrogate of the county where the intestate resided at his death, or, if then nonresident in this State, where any of the assets are located, or before the Superior Court, shall be entitled absolutely to all the real and personal assets without administration, and the assets of the estate up to $5,000.00 shall be free from all debts of the intestate. Upon the execution and filing of the affidavit as provided in this section, the surviving spouse or domestic partner shall have all of the rights, powers and duties of an administrator duly appointed for the estate. The surviving spouse or domestic partner may be sued and required to account as if he had been appointed administrator by the Surrogate or the Superior Court. The affidavit shall state that the affiant is the surviving spouse or domestic partner of the intestate and that the value of the intestate’s real and personal assets will not exceed $20,000.00, and shall set forth the residence of the intestate at his death, and specifically the nature, location and value of the intestate’s real and personal assets. The affidavit shall be filed and recorded in the office of such Surrogate or, if the proceeding is before the Superior Court, then in the office of the clerk of that court. Where the affiant is domiciled outside this State, the Surrogate may authorize in writing that the affidavit be executed in the affiant’s domicile before any of the officers authorized by R.S.46:14-7 and R.S.46:14-8 to take acknowledgments or proofs.
Amended 1983, c.246, s.1; 2004, c.132, s.77; 2005, c.331, s.24.
3B:10-4 When heirs entitled to assets without administration.
3B:10-4. When heirs entitled to assets without administration.
Where the total value of the real and personal assets of the estate of an intestate will not exceed $10,000.00 and the intestate leaves no surviving spouse or domestic partner, and one of his heirs shall have obtained the consent in writing of the remaining heirs, if any, and shall have executed before the Surrogate of the county where the intestate resided at his death, or, if then nonresident in this State, where any of the intestate’s assets are located, or before the Superior Court, the affidavit herein provided for, shall be entitled to receive the assets of the intestate of the benefit of all the heirs and creditors without administration or entering into a bond. Upon executing the affidavit, and upon filing it and the consent, he shall have all the rights, powers and duties of an administrator duly appointed for the estate and may be sued and required to account as if he had been appointed administrator by the Surrogate or the Superior Court.
The affidavit shall set forth the residence of the intestate at his death, the names, residences and relationships of all of the heirs and specifically the nature, location and value of the real and personal assets and also a statement that the value of the intestate’s real and personal assets will not exceed $10,000.00.
The consent and the affidavit shall be filed and recorded, in the office of the Surrogate or, if the proceeding is before the Superior Court, then in the office of the clerk of that court. Where the affiant is domiciled outside this State, the Surrogate may authorize in writing that the affidavit be executed in the affiant’s domicile before any of the officers authorized by R.S.46:14-7 and R.S.46:14-8 to take acknowledgments or proofs.
Amended 1983, c.246, s.2; 2004, c.132, s.78; 2005, c.331, s.25.
3B:10-5. Discharge of corporations or persons making payments or delivering assets under N.J.S. 3B:10-3 or N.J.S. 3B:10-4
Any bank, building and loan association, association, as defined in section 5 of the “Savings and Loan Act (1963),” P.L.1963, c. 144 (C. 17:12B-5), or any other corporation or any person, association or society, which pays or delivers any assets of the intestate to the person executing an affidavit under N.J.S. 3B:10-3 or N.J.S. 3B:10-4, upon presentation of a copy of the affidavit marked a true copy by the surrogate or the clerk of the Superior Court, shall be forever discharged from all claims by any administrator of the intestate who may be appointed or by any other person, as to the assets so paid or delivered, and this, notwithstanding that the total value of the real and personal assets does in fact exceed the amount limited by N.J.S. 3B:10-3 or N.J.S. 3B:10-4 or that the statements in the affidavit are erroneous or that the consent required by N.J.S. 3B:10-4 has not been obtained.
L.1981, c. 405, s. 3B:10-5, eff. May 1, 1982.
3B:10-6. Acts of administrator before notice of will
Lawful acts performed in good faith by an administrator before notice of a will and purchases or transfers made by him in good faith before notice shall remain valid and shall not be impeached or altered by an executor upon probate of the will.
Nothing in this section shall be construed to relieve the administrator of any liability to the executor under the will for property unadministered or maladministered.
L.1981, c. 405, s. 3B:10-6, eff. May 1, 1982.
3B:10-7. Ancillary administration on estate of nonresident intestate
Where a nonresident dies intestate seized of real property or possessed of personal property in this State, or where the evidence of his personal property shall be in the hands of any resident of this State, the surrogate’s court of the county wherein any of the real or personal property or evidence thereof, is situate, or the Superior Court, shall, in an action upon satisfactory proof of intestacy, issue letters of administration upon the estate of the nonresident to the administrator of his estate or, on notice to the administrator as the court shall require, to any person who would be entitled to administration if the intestate had been a resident at his death.
L.1981, c. 405, s. 3B:10-7, eff. May 1, 1982.
3B:10-8. Administration by creditor of nonresident decedent
If a personal representative of a nonresident decedent fails to apply in this State for letters testamentary or of administration within 60 days next after the death of the decedent and there is real or personal property of the decedent within this State, or the evidence thereof in the hands of a resident of this State, the surrogate’s court of a county wherein the real property, or personal property or evidence, is situate, or the Superior Court, may, in an action by any person resident or nonresident, alleging himself to have a debt or legal claim against the decedent which by the law of this State survives against his representatives, issue letters of administration, with the will annexed or otherwise as the case may require, to some fit person to be designated by the court.
Prior to an appointment pursuant to this section, notice shall be given the foreign personal representative as the court shall prescribe.
L.1981, c. 405, s. 3B:10-8, eff. May 1, 1982.
3B:10-9. Record of appointment of personal representative; evidentiary effect
If any person shall desire to have the appointment of a personal representative appointed in another state recorded in this State for the purpose of manifesting the authority of the personal representative to release or discharge real estate in this State from any mortgage, judgment, other lien or encumbrance which was held by his decedent the surrogate of the county wherein the real estate is situate, or the clerk of the Superior Court, may, upon the presentation to him of an exemplified copy of the record of the appointment of the personal representative, record and file the exemplified copy in his office, and the record or certified copies thereof shall be received as evidence in all courts of this State.
L.1981, c. 405, s. 3B:10-9, eff. May 1, 1982.
3B:10-10. Executor de son tort
Whereas it is sometimes practiced to the defrauding of creditors, that persons who are entitled to the administration of the estate of an intestate will not accept administration, but suffer or procure the administration to be granted to others of indigent circumstances, from whom they, or others, by their means, by deeds of gifts, or by letters of attorney, obtain the estate of the intestate into their hands, and are not subject to the payment of the debts of the intestate, and so the creditors cannot have or recover their just debts and demands; therefore, if any person shall obtain, receive and have, any property or debts of an intestate, or a release or other discharge of any debt or duty due the intestate, upon any fraud as herein provided, without valuable consideration as shall amount to the value of the property or debts, or near thereabouts except it be in or towards satisfaction of some just debt, of the value of the same property or debts, to him owing by the intestate at the time of his decease, the person shall be charged and chargeable as executor of his own wrong so far only, as all the property and debts coming to his hands, or whereof he is released or discharged by the administrator, will satisfy. However he shall not be charged for those just debts, contracted without fraud and upon a good consideration, which are owing to him by the intestate at the time of his decease, nor for payments made by him which lawful executors or administrators ought to pay.
L.1981, c. 405, s. 3B:10-10, eff. May 1, 1982.
3B:10-11. Administration ad prosequendum on death by wrongful act
The surrogate’s court of the county wherein an intestate resided at his death, or, if the intestate resided outside the State, the surrogate’s court of the county wherein the accident resulting in death occurred, or the Superior Court, may grant letters of administration ad prosequendum to the person entitled by law to general administration. An administrator ad prosequendum shall not be required to give bond.
L.1981, c. 405, s. 3B:10-11, eff. May 1, 1982.
3B:10-12. Temporary administration
The Superior Court may grant administration ad litem, temporary administration, administration pendente lite, or any form of limited administration.
L.1981, c. 405, s. 3B:10-12, eff. May 1, 1982.
3B:10-13. Duty to apply in this State for original letters of administration
When an intestate is resident in any county of New Jersey at his death, it shall be the duty of the heir or any other person desiring original letters of administration upon his estate to make application therefor to the surrogate of that county or to the Superior Court of this State.
Any person having knowledge of the grant in a foreign jurisdiction of original letters of administration upon the estate of a person dying resident in any county of New Jersey, shall give information thereof to the Superior Court.
The court may direct the clerk of the court to issue and have served subpenas or an order to show cause requiring the appearance before it, at a specified time, of any persons having any interest in the estate, and commanding them to abide the order of the court. The matter of the grant of letters of administration shall be wholly within the jurisdiction of the court.
L.1981, c. 405, s. 3B:10-13, eff. May 1, 1982.
3B:10-14. Appointment of debtor as executor; debt not discharged
The appointment of a debtor as executor shall not, unless otherwise expressed in the will, be construed to discharge the executor from payment of the debt, but the debt shall be considered an asset in the hands of the executor and shall be accounted for in the same manner as any other part of the decedent’s estate.
L.1981, c. 405, s. 3B:10-14, eff. May 1, 1982.
3B:10-15. Appointment of substituted administrators
When a sole or sole surviving or remaining executor or administrator, with or without the will annexed, dies or is removed or discharged by the court after qualifying and entering upon the duties of his office but before the completion thereof, the vacancy so created shall, except as hereinafter provided, be filled by the appointment of a fit person to exercise the vacated office. The person so appointed shall be nominated substituted administrator with the will annexed or substituted administrator, as the case may be.
L.1981, c. 405, s. 3B:10-15, eff. May 1, 1982.
3B:10-16. Decedent’s will to be observed
Where administration is granted with the will annexed, the will of the decedent therein expressed shall be observed and performed.
L.1981, c. 405, s. 3B:10-16, eff. May 1, 1982.
3B:10-17. Manner in which appointment shall be made
The appointment shall be made by the issuance of letters of substitutionary administration, with or without the will annexed as the case may be, by the surrogate’s court or the Superior Court in the manner and upon the conditions prescribed for granting letters of administration to the first administrators in other cases.
L.1981, c. 405, s. 3B:10-17, eff. May 1, 1982.
3B:10-18. When appointment unnecessary
The appointment of a substituted administrator shall not be required if the unadministered assets of the intestate or testator consist of money on deposit in a bank, trust company or savings and loan association not exceeding $1,000.00, in which event it shall be lawful for the Superior Court, in an action brought by any party in interest, to authorize the bank, trust company or savings and loan association to distribute to the persons entitled by law to receive the assets. Payments made pursuant to the authority of this section shall release the bank, trust company or savings and loan association from any claim of, or liability to, any person interested in the estate.
L.1981, c. 405, s. 3B:10-18, eff. May 1, 1982.
3B:10-19. Commencement of duties and powers of a personal representative
The duties and powers of a personal representative commence upon his appointment. The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter.
L.1981, c. 405, s. 3B:10-19, eff. May 1, 1982.
3B:10-20. Ratification of prior acts
A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative.
L.1981, c. 405, s. 3B:10-20, eff. May 1, 1982.
3B:10-21.1 Appointment of person to control funeral, disposition of remains.
40.Prior to probate, a decedent’s appointment of a person in a will to control the funeral and disposition of human remains may be carried out in accordance with section 22 of P.L.2003, c.261 (C.45:27-22). If known to them, a person named executor in a will shall notify such a person of their appointment and advise them of what financial means are available to carry out the funeral and disposition arrangements.
L.2003,c.261,s.40.
3B:10-22. Priority among letters
A person to whom general letters of appointment are issued first has exclusive authority under the letters until his appointment is terminated or modified. If, through error, general letters of appointment are afterwards issued to another, the first appointed personal representative may recover any property of the estate in the hands of the personal representative subsequently appointed, but the acts of the latter done in good faith before notice of the first letters are not void for want of validity of appointment.
L.1981, c. 405, s. 3B:10-22, eff. May 1, 1982.
3B:10-23. Duty of personal representative to settle and distribute estate
A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and applicable law, and as expeditiously and efficiently as is consistent with the best interests of the estate. He shall use the authority conferred upon him by law, the terms of the will, if any, and any order in proceedings to which he is a party for the best interests of successors to the estate.
L.1981, c. 405, s. 3B:10-23, eff. May 1, 1982.
3B:10-24. Liability for acts of administration or distribution
A personal representative shall not be surcharged for acts of administration or distribution if the conduct in question was authorized at the time. Subject to other obligations of administration, a probated will is authority to administer and distribute the estate according to its terms. An order of appointment of a personal representative is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a pending proceeding to probate a will or to determine heirs, a proceeding to vacate an order entered in an earlier proceeding to probate a will, a formal proceeding questioning his appointment or fitness to continue. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of claimants and others interested in the estate.
L.1981, c. 405, s. 3B:10-24, eff. May 1, 1982.
3B:10-25. Standing to sue and be sued
Except as to proceedings which do not survive the death of the decedent, a personal representative of a decedent domiciled in this State at his death has the same standing to sue and be sued in the courts of this State and the courts of any other jurisdiction as his decedent had immediately prior to death.
L.1981, c. 405, s. 3B:10-25, eff. May 1, 1982.
3B:10-26. Standards of care to be observed
Except as otherwise provided by the terms of a decedent’s will, the personal representative shall observe the standards in dealing with the estate assets that would be observed by a prudent man dealing with the property of another, and if the personal representative has special skills or is named personal representative on the basis of representations of special skills or expertise, he is under a duty to use those skills.
L.1981, c. 405, s. 3B:10-26, eff. May 1, 1982.
3B:10-27. Right to possession of property transferred in fraud of creditors
The right to possession of property transferred in fraud of creditors recovered for the benefit of creditors is exclusively in the personal representative.
L.1981, c. 405, s. 3B:10-27, eff. May 1, 1982.
3B:10-28. Expeditious settlement and distribution
A personal representative shall proceed expeditiously with the settlement and distribution of a decedent’s estate and do so without adjudication, order, or direction of a court, but he may invoke the jurisdiction of a court, in proceedings authorized by law to resolve questions concerning the estate or its administration.
L.1981, c. 405, s. 3B:10-28, eff. May 1, 1982.
3B:10-29. Possession and control of estate
Except as otherwise provided by a decedent’s will, every personal representative has a right to, and shall take possession or control of, the decedent’s property, except that any tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by him will be necessary for purposes of administration. The request by a personal representative for delivery of any property possessed by an heir or devisee is conclusive evidence, in any action against the heir or devisee for possession thereof, that the possession of the property by the personal representative is necessary for purposes of administration. The personal representative shall pay taxes on, and take all steps reasonably necessary for the management, protection and preservation of, the estate in his possession. He may maintain an action to recover possession of property or to determine the title thereto.
L.1981, c. 405, s. 3B:10-29, eff. May 1, 1982.
3B:10-30. Power over title to property
Until termination of his appointment a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate. This power may be exercised without notice, hearing, or order of court.
L.1981, c. 405, s. 3B:10-30, eff. May 1, 1982.
3B:10-31. Powers and duties of successor representative
A successor personal representative has the same power and duty as the original personal representative to complete the administration and distribution of the estate, as expeditiously as possible, but he shall not exercise any power expressly made personal to the executor named in the will.
L.1981, c. 405, s. 3B:10-31, eff. May 1, 1982.
3B:10-32. Powers of surviving copersonal representative
Unless the terms of the will otherwise provide, every power exercisable by copersonal representatives may be exercised by the one or more remaining after the appointment of one or more is terminated, and if one of two or more nominated as copersonal representatives is not appointed, those appointed may exercise all the powers incident to the office.
L.1981, c. 405, s. 3B:10-32, eff. May 1, 1982.
3B:11-1 Creator’s reserved interest in trust alienable subject to creditors’ claims.
3B:11-1. Creator’s reserved interest in trust alienable subject to creditors’ claims.
a.The right of any creator of a trust to receive either the income or the principal of the trust or any part of either thereof, presently or in the future, shall be freely alienable and shall be subject to the claims of his creditors, notwithstanding any provision to the contrary in the terms of the trust.
b.A trustee’s discretionary authority to pay trust income or principal to the creator of such trust in an amount equal to the income taxes on any portion of the trust principal chargeable to the creator shall not be considered to be a right of the trust creator to receive trust income or principal within the meaning of subsection a. of this section. The trust creator shall not be considered to have the right to receive income or principal of the trust solely because the trustee is authorized under the trust instrument or any other provision of law to pay or reimburse the creator for any tax on trust income or trust principal that is payable by the creator under the law imposing such tax or to pay any such tax directly to the taxing authorities. No creditor of a trust creator shall be entitled to reach any trust property based on the discretionary powers described in this subsection.
amended 2013, c.55.
3B:11-2. Letters of trusteeship under a will
A testamentary trustee or substituted testamentary trustee, before exercising the authority vested in him by virtue of any will admitted to probate by the Superior Court, or any surrogate’s court of this State, shall obtain letters of trusteeship from that court.
L.1981, c. 405, s. 3B:11-2, eff. May 1, 1982.
3B:11-3. Trustees construed to be joint tenants
All estates heretofore or hereafter granted or devised to trustees shall be construed to have vested and to vest an estate of joint tenancy in the trustees.
When a trustee is removed a conveyance or devise from the removed trustee to the old and new trustees or to the new trustees shall vest in the old and new trustees or the new trustees an estate in joint tenancy, notwithstanding any want of unity.
When a trustee dies or resigns or his office becomes vacant for any cause, and a new trustee is appointed, the surviving trustees, if any there be, and the new trustees shall hold the trust estate as joint tenants, and a conveyance of a right and interest in the trust estate from the surviving trustees, to the new trustee shall vest in all the trustees an estate in joint tenancy, notwithstanding any want of unity.
When a new, additional or substituted trustee is appointed by a court of competent jurisdiction or becomes such by operation of the terms of a will or other instrument or by operation of law, title to the trust assets shall forthwith vest in all the trustees in office including the new, additional or substituted trustee as joint tenants.
L.1981, c. 405, s. 3B:11-3, eff. May 1, 1982.
3B:11-4. Effect to be given consent by holders of general powers of appointment upon beneficiaries
For the purpose of granting consent or approval with regard to the acts or accounts of a fiduciary or trustee, including relief from liability or penalty for failure to post bond, or to perform other duties, and for purposes of consenting to modification or termination of a trust or to deviation from its terms, the sole holder or all coholders of a presently exercisable general power of appointment, including one in the form of a power of amendment or revocation, are deemed to act for beneficiaries to the extent that the interests of the beneficiaries as objects, takers in default, or otherwise are subject to the power. As used in this section, a presently exercisable general power of appointment is one which enables the power holder to presently draw absolute ownership to himself.
L.1981, c. 405, s. 3B:11-4, eff. May 1, 1982.
3B:11-4.1. Limitations on powers of trustees; applicability; “interested party” defined
1.a. The following powers conferred by a governing instrument upon a trustee in his or her capacity as a trustee shall not be exercised by that trustee:
(1) The power to make discretionary distributions of either principal or income to or for the benefit of the trustee, the trustee’s estate, or the creditors of either, unless either:
(a) limited by an ascertainable standard relating to the trustee’s health, education, support or maintenance, within the meaning of 26 U.S.C. 2041 and 2514; or
(b) exercisable by the trustee only in conjunction with another person having a substantial interest in the property subject to the power which is adverse to the interest of the trustee within the meaning of 26 U.S.C. 2041(b) (1) (C) (ii);
If a trustee is prohibited by paragraph (1) of this subsection from exercising a power conferred upon the trustee, the trustee nevertheless may exercise that power but shall be limited to distributions for the trustee’s health, education, support or maintenance to the extent otherwise permitted by the terms of the trust.
(2) The power to make discretionary distributions of either principal or income to satisfy any of the trustee’s personal legal obligations for support or other purposes;
(3) The power to make discretionary allocations in the trustee’s personal favor of receipts or expenses as between income and principal, unless such trustee has no power to enlarge or shift any beneficial interest except as an incidental consequence of the discharge of such trustee’s fiduciary duties;
(4) The power to exercise any of the powers proscribed in this subsection with regard to an individual other than the trustee to the extent that such individual could exercise a similar prohibited power in connection with a trust that benefits the trustee.
b. Unless otherwise prohibited by the provisions of subsection a. of this section, a trustee may exercise a power described in that subsection in favor of someone other than the trustee, the trustee’s estate, or the creditors of either.
c. If a governing instrument contains a power proscribed under subsection a. of this section the following shall apply:
(1) If the power is conferred on two or more trustees, it may be exercised by the trustee or trustees who are not so prohibited as if they were the only trustee or trustees; or
(2) If there is no trustee in office who can exercise such power upon application of any interested party, a court of competent jurisdiction shall appoint a trustee to exercise such power or, except as provided in subsection d. of this section, a successor trustee who would not be disqualified shall be appointed to exercise the power that the other trustees cannot exercise in accordance with the provisions of the trust instrument as if the office of trustee were vacant.
d. No beneficiary of a trust, in an individual, trustee or other capacity, may appoint, or remove and appoint, a trustee who is related or subordinate to the beneficiary within the meaning of 26 U.S.C. 672 (c) unless:
(1) the trustee’s discretionary power to make distributions to or for such beneficiary is limited by an ascertainable standard relating to the beneficiary’s health, education, support or maintenance as set forth in subsection a. of this section;
(2) the trustee’s discretionary power may not be exercised to satisfy any of such beneficiary’s legal obligations for support or other purposes; and
(3) the trustee’s discretionary power may not be exercised to grant to such beneficiary a general power to appoint property of the trust to the beneficiary, the beneficiary’s estate or the creditors thereof within the meaning of 26 U.S.C. 2041.
This subsection d. shall not apply if the appointment of the trustee by the beneficiary may be made only in conjunction with another person having a substantial interest in the property of the trust, subject to the power, which is adverse to the exercise of the power in favor of the beneficiary within the meaning of 26 U.S.C. 2041(b) (1) (C) (ii).
e. The provisions of this section shall not apply during the time that a trust remains revocable or amendable by the grantor.
f. This section applies to:
(1) Any trust created under a governing instrument executed 90 days or more after the effective date of this act, unless the governing instrument expressly provides that this act does not apply; and
(2) Any trust created under a governing instrument executed before 90 days after the effective date of this act, unless all interested parties affirmatively elect on or before three years after the effective date by a written declaration signed by or on behalf of each interested party and delivered to the trustee, not to be subject to the application of this act. In the case of a testamentary trust, such declarations shall be filed with the clerk of the court in which the will was admitted to probate.
g. In this section the term “interested party” means:
(1) Each trustee then serving; and
(2) Each person having an interest in income or principal whom it would be necessary to join as a party in a proceeding for the judicial settlement of a trustee’s account or, if such a person has not attained majority or is otherwise incapacitated, the person’s legal representative under applicable law or the person’s agent under a durable power of attorney that is sufficient to grant such authority.
L.1996,c.41.
3B:11-5 Trustee’s death or failure to act; appointment of new trustee by court; powers.
3B:11-5. When a trustee appointed by a will probated in the surrogate’s court of any county or a trustee appointed under a trust inter vivos as to real or personal property situate in any county fails or refuses to act or dies before the execution or completion of the trust, or absconds or removes from this State, or is adjudicated an incapacitated individual or becomes in any manner legally incapable of executing the trust, the Superior Court may remove the trustee and appoint a suitable person or persons to execute the trust, and the trustee or trustees so appointed shall be entitled to the trust estate as fully and in the same manner as the original trustee was and shall have all the power and discretion of the original trustee.
amended 2013, c.103, s.22.
3B:11-6. Vacancy in trusteeship upon discharge or removal
When a trustee is removed or discharged by the Superior Court before the completion of the trust, the court may appoint a fit person or persons to fill the vacated office.
L.1981, c. 405, s. 3B:11-6, eff. May 1, 1982.
3B:11-7. Powers of new, substituted or additional trustees
A duly appointed new, substituted or additional trustee shall have the same power and discretion with respect to the investment, management, conversion, sale or other disposition of the trust estate, whether real or personal, as was given to or vested in the original trustee or trustees named in or appointed by the will or other instrument creating or continuing the trust, notwithstanding the power or discretion may be directed by the will or other instrument to be exercised at the discretion of the original trustee or trustees unless the power or discretion of the original trustee or trustees is expressly prohibited by the will or other instrument to any new, substituted or additional trustee.
L.1981, c. 405, s. 3B:11-7, eff. May 1, 1982.
3B:11-8. Short title
This article shall be known and may be cited as the “Charitable Trust Law of 1971.”
L.1981, c. 405, s. 3B:11-8, eff. May 1, 1982.
3B:11-9. Definitions
As used in this article:
a. “Code” means the Internal Revenue Code of 1954 as amended;
b. “Private foundation trust” means a charitable trust which is a private foundation described in section 509(a) of the code, including each nonexempt charitable trust described in section 4947(a)(1) of the code which is treated as a private foundation;
c. “Split-interest trust” means a nonexempt split-interest trust described in section 4947(a)(2) of the code, but only to the extent that section 508(e) of the code is applicable to the nonexempt split-interest trust under section 4947(a)(2) of the code;
d. “Trust instrument” means a will, deed, agreement, court order, or other instrument pursuant to which money or other property is entrusted to a fiduciary, and also means the certificate of incorporation of a nonprofit corporation administering a charitable foundation trust;
e. “Trustee” means every fiduciary administering a trust instrument, and includes a corporation which is a private charitable foundation administering a private foundation trust;
f. “Trust” means private foundation trusts and split-interest trusts.
L.1981, c. 405, s. 3B:11-9, eff. May 1, 1982.
3B:11-10. Provision included in trust instruments governing nonprofit corporations administering private foundation trusts
Notwithstanding any provision to the contrary contained in any law of this State or in any trust instrument, and except as otherwise provided in N.J.S. 3B:11-12, each trust instrument governing a nonprofit corporation administering a private foundation trust shall, by virtue of this article, and without any further act by any person or persons, be deemed to include the following:
“This corporation shall make distributions at times and in a manner as not to subject it to tax under section 4942 of the Internal Revenue Code of 1954 as amended, and shall not engage in any act of self-dealing as defined in section 4941 of the code, and shall not retain any excess business holdings as defined in section 4943 of the code, and shall not make any investments as defined in section 4944 of the code, and shall not make any taxable expenditure which would subject it to tax under section 4945 of the code.”
L.1981, c. 405, s. 3B:11-10, eff. May 1, 1982.
3B:11-11. Provision included in trust instruments governing split-interest trusts or private foundation trusts
Notwithstanding any provision to the contrary contained in any law of this State or in any trust instrument, and except as otherwise provided in N.J.S. 3B:11-12, each trust instrument governing a split-interest trust or a private foundation trust other than one as described in N.J.S. 3B:11-10, shall, by virtue of this article and without any further act by any person or persons, be deemed to include the following:
“Distributions of this trust shall be made at times and in a manner as not to subject the trust to tax under section 4942 of the Internal Revenue Code of 1954, as amended, and shall not engage in any act of self-dealing as defined in section 4941 of the code, and shall not retain any excess business holdings as defined in section 4943 of the code, and shall not make any investment as defined in section 4944 of the code, and shall not make any taxable expenditure which would subject it to tax under section 4945 of the code.”
L.1981, c. 405, s. 3B:11-11, eff. May 1, 1982.
3B:11-12. Execution of instrument stating certain provisions not applicable to trust; filing
The trustee or trustees of any trust may, without judicial proceedings, execute an instrument stating that the provisions of N.J.S. 3B:11-10 or N.J.S. 3B:11-11, as the case may be, shall not be applicable to the trust, and upon filing a copy thereof in the office of the Secretary of State of this State, the provisions of N.J.S. 3B:11-10 or N.J.S. 3B:11-11, as the case may be, shall not apply to the trust.
L.1981, c. 405, s. 3B:11-12, eff. May 1, 1982.
3B:11-13. Construction of article
This article shall be so construed as to enable split-interest trusts and private foundation trusts to qualify for the maximum tax exemptions available to those trusts under the Internal Revenue Code of 1954 as amended
L.1981, c. 405, s. 3B:11-13, eff. May 1, 1982.
3B:11-14. Power of courts or Attorney General not impaired by article
Nothing in this article shall impair the power conferred by law upon the courts or the Attorney General of this State with respect to any trust subject to the provisions of this article.
L.1981, c. 405, s. 3B:11-14, eff. May 1, 1982.
3B:11-15. Application of article
This article shall apply to all trusts, as defined herein, whether created before or after December 13, 1971.
L.1981, c. 405, s. 3B:11-15, eff. May 1, 1982.
3B:11-16. Pooled trust accounts
1. Prepaid funeral expense moneys used to fund a prepaid funeral agreement may be deposited into a pooled trust account in a federally insured State or federally chartered bank, savings bank or savings and loan association pursuant to a written trust agreement the beneficiaries of which shall be the purchasers or intended funeral recipients. Any such trust agreement shall assure that the following terms and conditions are clearly and conspicuously disclosed in writing to purchasers and intended funeral recipients prior to the acceptance of any moneys by the trustees:
a. The right to immediately withdraw on demand any moneys plus accrued interest paid into the trust, except as provided in section 1 of P.L.1991, c.502 (C.2A:102-16.1).
b. The right to receive periodic statements not less than once per year reflecting the amount of principal and accrued interest, if any, in the trust.
c. The amount or rate of commissions to be taken.
d. The identity and location of the trustees.
e. The location of the trust agreement and the conditions under which it may be examined.
All such trust agreements entered into by a provider on or after the effective date of this 1993 amendatory and supplementary act shall comply with the provisions set forth in sections 1 through 13 of P.L.1993, c.147 (C.45:7-82 to 45:7-94).
L.1985,c.147,s.1; amended 1991,c.502,s.2; 1993,c.147,s.20.
3B:11-16.1. Definitions used in C.3B:11-16 et al.
22. As used in P.L.1985, c.147 (C.3B:11-16 et al.):
“Assigned funeral insurance policy” means any insurance policy or annuity contract that is not a newly issued funeral insurance policy, but that, at the time an assignment was made of some or all of its proceeds, was intended to provide funds to the provider, whether directly or indirectly, at the time of the insured’s death in connection with a prepaid funeral agreement.
“Deliver” or “delivery” means the conveyance of actual control and possession of prepaid funeral goods that have been permanently relinquished by a provider, or other person, firm or corporation, or an agent thereof, to the purchaser or person paying the moneys, or personal representative of the intended funeral recipient. Delivery has not been made if the provider, or other person, firm or corporation, or an agent thereof:
(1) Arranges or induces the purchaser or person paying the moneys to arrange for the storage or warehousing of prepaid funeral goods ordered pursuant to a prepaid funeral agreement, with or without evidence that legal title has passed; or
(2) Acquires or reacquires actual or constructive possession or control of prepaid funeral goods after their initial delivery to the purchaser or person paying the moneys or personal representative of the intended funeral recipient.
This definition of delivery shall apply to this term as used in P.L.1985, c.147 (C.3B:11-16 et al.), notwithstanding the provisions set forth in the Uniform Commercial Code, Title 12A of the New Jersey Statutes.
“Funeral insurance policy” means any newly issued funeral insurance policy or assigned funeral insurance policy.
“Funeral trust” means a commingled or non-commingled account held in a pooled trust or P.O.D. account, established in accordance with P.L.1957, c.182 (C.2A:102-13 et seq.) or P.L.1985, c.147 (C.3B:11-16 et al.), which is intended as the depository for cash payments connected with a prepaid funeral agreement.
“Intended funeral recipient” means the person named in a prepaid funeral agreement for whose bodily disposition the prepaid funeral agreement is intended to provide. The intended funeral recipient may or may not be the purchaser.
“Newly issued funeral insurance policy” means any insurance policy or annuity contract that, at the time of issue, was intended to provide, or was explicitly marketed for the purpose of providing, funds to the provider, whether directly or indirectly, at the time of the insured’s death in connection with a prepaid funeral agreement.
“Payable on death account” or “P.O.D. account” means an account payable on request to the purchaser or intended funeral recipient of a prepaid funeral agreement, during the lifetime of the intended funeral recipient and on his death, to a provider of funeral goods and services.
“Pooled trust” means a pooled trust account established pursuant to P.L.1985, c.147 (C.3B:11-16 et al.).
“Preneed funeral arrangements” means funeral arrangements made with an intended funeral recipient or his guardian, agent or next of kin, for the funeral of the intended funeral recipient.
“Prepaid funeral agreement” means a written agreement and all documents related thereto made by a purchaser with a provider prior to the death of the intended funeral recipient, with which there is connected a provisional means of paying for preneed funeral arrangements upon the death of the intended funeral recipient by the use of a funeral trust or funeral insurance policy, made payable to a provider and in return for which the provider promises to furnish, make available or provide the prepaid funeral goods or services, or both, specified in the agreement, the delivery of which occurs after the death of the intended funeral recipient.
“Prepaid funeral goods” means personal property typically sold or provided in connection with a funeral, or the final disposition of human remains, including, but not limited to, caskets or other primary containers, cremation or transportation containers, outer burial containers, vaults, as defined in N.J.S.8A:1-2, memorials as defined in N.J.S.8A:1-2, funeral clothing or accessories, monuments, cremation urns, and similar funeral or burial items, which goods are purchased in advance of need and which will not be delivered until the death of the intended funeral recipient named in a prepaid funeral agreement. Prepaid funeral goods shall not mean the sale of interment spaces and related personal property offered or sold by a cemetery company as provided for in N.J.S.8A:1-1 et seq.
“Prepaid funeral services” means those services typically provided in connection with a funeral, or the final disposition of human remains, including, but not limited to, funeral directing services, embalming services, care of human remains, preparation of human remains for final disposition, transportation of human remains, use of facilities or equipment for viewing human remains, visitation, memorial services or services which are used in connection with a funeral or the disposition of human remains, coordinating or conducting funeral rites or ceremonies and similar funeral or burial services, including limousine services provided in connection therewith, which services are purchased in advance of need and which will not be provided or delivered until the death of the intended funeral recipient named in a prepaid funeral agreement. Prepaid funeral services shall not mean the sale of services incidental to the provision of interment spaces or any related personal services offered or sold by a cemetery company as provided for in N.J.S.8A:1-1 et seq.
“Provider” means a person, firm or corporation duly licensed and registered pursuant to the “Mortuary Science Act,” P.L.1952, c.340 (C.45:7-32 et seq.) to engage in the business and practice of funeral directing or mortuary science, or an individual serving as an agent thereof and so licensed:
(1) Operating a duly registered mortuary in accordance with P.L.1952, c.340 (C.45:7-32 et seq.) and the regulations promulgated thereunder;
(2) Having his or its business and practice based within the physical confines of the registered mortuary; and
(3) Engaging in the practice of making preneed funeral arrangements, including, but not limited to, offering the opportunity to purchase or enroll in prepaid funeral agreements.
“Purchaser” means the person named in a prepaid funeral agreement who purchases the prepaid funeral goods and services to be provided thereunder. The purchaser may or may not be the intended funeral recipient. If the purchaser is different than the intended funeral recipient, it is understood that the relationship of the purchaser to the intended funeral recipient includes a means to provide administrative control over the agreement on behalf of the intended funeral recipient.
L.1993,c.147,s.22; amended 1994,c.163,s.4.
3B:11-17. Trustees’ commission
2. The trustees of a pooled trust fund established pursuant to section 1 of this act for the benefit of not less than 200 purchasers or intended funeral recipients shall be entitled to a commission of not more than 1% per annum of the corpus of the trust fund. The trustees of a pooled trust fund for the benefit of less than 200 purchasers or intended funeral recipients shall not be entitled to any commission. All expenses incurred in the administration of such a trust or the services rendered thereby shall be deducted from income received by the trustees and in no event shall the trustees invade the corpus of the trust funds.
L.1985,c.147,s.2; amended 1993,c.147,s.21.
3B:11-18. Report; rules, regulations
The Commissioner of Banking shall determine whether, among pooled trust funds established pursuant to this act, adequate competition exists with respect to interest rate yield and commissions or fees charged during the one year period following the effective date of this act. No later than one year after the effective date of this act the commissioner shall report to the Legislature his findings and any recommendations he may have to provide for greater competition among pooled trust funds.
The commissioner shall adopt rules and regulations pursuant to the “Administrative Procedure Act,” P.L. 1968, c. 410 (C. 52:14B-1 et seq.) as may be necessary to effectuate the purposes of this section.
L. 1985, c. 147, s. 3, eff. April 24, 1985.
3B:11-19. Short title
This act shall be known and may be cited as the “New Jersey Community Trust for Persons with Severe Chronic Disabilities Act.”
L. 1985, c. 424, s. 1.
3B:11-20. Findings
The Legislature finds that it is in the public interest to encourage activities by voluntary associations and private citizens which will supplement and augment those services provided by local, State, and federal government agencies in discharge of their responsibilities toward individuals with severe chronic disabilities. The Legislature further finds that, as a result of changing social, economic, and demographic trends, families of persons with severe chronic disabilities are increasingly aware of the need for a vehicle by which they can assure ongoing individualized personal concern for a severely disabled family member who may survive his parents or other family members, and provide for the efficient management of small legacies or trust funds to be used for the benefit of such a disabled person. In a number of other states voluntary associations have established foundations or trusts intended to be responsive to these concerns. Therefore, a study of the experience in other states suggests that New Jersey would benefit by the enactment of enabling legislation expressly authorizing the formation of community trusts in accordance with criteria set forth by statute and administered by the Secretary of State. These community trusts permit the pooling of resources contributed by families or persons with philanthropic intent, along with the reservation of portions of these funds for the use and benefit of designated beneficiaries.
L. 1985, c. 424, s. 2.
3B:11-21 Purposes, policies.
3.This act shall be liberally construed and applied to promote its underlying purposes and policies, which are among others to:
a.encourage the orderly establishment of community trusts for the benefit of persons with severe chronic disabilities;
b.ensure that community trusts are administered properly and that the managing boards of the trusts are free from conflicts of interest, except that an unpaid member of the managing board of a nonprofit corporation provider shall not be deemed to be in conflict as a member of the managing board of a trust;
c.facilitate sound administration of trust funds for persons with severe chronic disabilities by allowing family members and others to pool resources in order to make professional management investment more efficient;
d.provide parents of persons with severe chronic disabilities peace of mind in knowing that a means exists to ensure that the interests of their children who have severe chronic disabilities are properly looked after and managed after the parents die or become incapacitated;
e.help make guardians available for persons with severe chronic disabilities who are incapacitated, when no other family member is available for this purpose;
f.encourage the availability of private resources to purchase for persons with severe chronic disabilities goods and services that are not available through any governmental or charitable program and to conserve these resources by limiting purchases to those which are not available from other sources;
g.encourage the inclusion, as beneficiaries of community trusts, of persons who lack resources and whose families are indigent, in a way that does not diminish the resources available to other beneficiaries whose families have contributed to the trust; and
h.remove the disincentives which discourage parents and others from setting aside funds for the future protection of persons with severe chronic disabilities by ensuring that the interests of beneficiaries in community trusts are not considered assets or income which would disqualify them from any governmental or charitable entitlement program with an economic means test.
L.1985, c.424, s.3; amended 1993, c.224, s.1; 2013, c.103, s.23.
3B:11-22 Definitions.
As used in P.L.1985, c.424 (C.3B:11-19 et seq.):
a. “Beneficiary” means any person with a severe chronic disability who has qualified as a member of the community trust program and who has the right to receive those services and benefits of the community trust program as provided in P.L.1985, c.424.
b.”Board” means the board of trustees or the group of persons vested with the management of the business and affairs of a corporation, formed for the purpose of managing a community trust, irrespective of the name by which the group is designated. c.”Community trust” means a nonprofit organization which offers the following services:
(1)administration of special trust funds for persons with severe chronic disabilities;
(2)follow-along services;
(3)guardianship for persons with severe chronic disabilities who are incapacitated, when no other immediate family member or friend is available for this purpose; and
(4)advice and counsel to persons who have been appointed as individual guardians of the persons or estates of persons with severe chronic disabilities.
d.”Follow-along services” means those services offered by community trusts which are designed to insure that the needs of each beneficiary are being met for as long as may be required and may include periodic visits to the beneficiary and to the places where the beneficiary receives services, participation in the development of individualized plans being made by service providers for the beneficiary, and other similar services consistent with the purposes of P.L.1985, c.424.
e.”Severe chronic disability” means a physical or mental impairment which is expected to give rise to a long-term need for specialized health, social, and other services, and which makes the person with that impairment dependent upon others for assistance to secure these services.
f.”Trustee” means any member of the board of a corporation, formed for the purpose of managing a community trust, whether that member is designated as a trustee, director, manager, governor, or by any other title.
g.”Surplus trust funds” means funds accumulated in the trust from contributions made on behalf of an individual beneficiary, which, after the death of the beneficiary, are determined by the board to be in excess of the actual cost of providing services during the beneficiary’s lifetime, including the beneficiary’s share of administrative costs, and of any amounts provided to a remainderman.
L.1985, c.424, s.4; amended 1993, c.224, s.2; 2013, c.103, s.24.
3B:11-23. Nonprofit corporations
This act shall apply to every community trust established in this State after the effective date of this act. In addition to meeting the other requirements of the act, every board which administers a community trust shall incorporate as a nonprofit corporation in accordance with the provisions of Title 15A of the New Jersey Statutes. Except as otherwise provided herein, the provisions of Title 15A of the New Jersey Statutes shall apply to the community trust.
L. 1985, c. 424, s. 5
3B:11-24. Board.Every community trust shall be administered by a board. The board shall be comprised of no less than nine and no more than 21 members, at least one-third of whom shall be parents or relatives of persons with severe chronic disabilities. Board members shall be selected, to the maximum extent possible, from geographic areas throughout the area served by the trust.
The certificate of incorporation filed with the Secretary of State pursuant to Title 15A of the New Jersey Statutes shall, in addition to the requirements set forth in that Title, demonstrate that the requirements of this section have been met.
L.1985,c.424,s.6; amended 1993,c.224,s.3.
3B:11-25. No compensation
Notwithstanding any other provision of law to the contrary, no trustee may be compensated for services provided as a member of the board of a community trust. No fees or commissions shall be paid to these trustees; however, a trustee may be paid for necessary expenses incurred by the trustee and may receive indemnification as permitted under Title 15A of the New Jersey Statutes.
L. 1985, c. 424, s. 7.
3B:11-26. Bylaws
The board shall adopt bylaws which shall include a declaration delineating the primary geographic area serviced by the trust and the principal services to be provided and shall file the bylaws with the Secretary of State.
L. 1985, c. 424, s. 8.
3B:11-27. Services; guardianshipThe board may retain paid staff as it may deem necessary to provide follow- along services to the extent required by each beneficiary. The board may authorize the expenditure of funds for any goods or services which, in its sole discretion, it determines will promote the well-being of any beneficiary, including recreational services. The board may pay for the burial of any beneficiary. The board, however, may not expend funds for any goods or services of comparable quality to those available to any particular beneficiary through any governmental or charitable program, insurance, or other sources. The board may expend funds to meet the reasonable costs of administering the community trust.
The board is not required to provide services to a beneficiary who is a competent adult and who has refused to accept the services. Further, the board shall not provide services of a nature or in a manner that would be contrary to the public policy of this State at the time the services are to be provided. In either case, the board may offer alternative services that are consistent with the purposes of this act and in keeping with the best interests of the beneficiary.
The board may accept appointment as guardian of the person, guardian of the estate or guardian of both on behalf of any beneficiary. If the board accepts appointment as guardian of the person of an individual, it shall assign a staff member to carry out its responsibilities as the guardian. The board may, on request, offer consultative and professional assistance to an individual, private or public guardian of any of its beneficiaries.
L. 1985, c. 424, s. 9.
3B:11-28. Contributions; written statement of services
The board may accept contributions, bequests, and designations under life insurance policies to the community trust on behalf of individuals with severe chronic disabilities for the purpose of qualifying them as beneficiaries.
At the time a contribution, bequest, or assignment of insurance proceeds is made, the trustor shall receive a written statement of the services to be provided to the beneficiary. The statement shall include a starting date for the delivery of services or the condition precedent, such as the death of the trustor, which shall determine the starting date. The statement shall describe the frequency with which services shall be provided and their duration, and the criteria or procedures for modifying the program of services from time to time in the best interests of the beneficiary.
L. 1985, c. 424, s. 10.
3B:11-29. Itemized annual statement
Along with the annual report filed with the Secretary of State pursuant to Title 15A of the New Jersey Statutes, the board shall file an itemized statement which shows the funds collected for the year, income earned, salaries, other expenses incurred, and the opening and final trust balances. A copy of this statement shall be made available, upon request, to any beneficiary, trustor, or designee of the trustor. In addition, once annually, each trustor or the trustor’s designee shall receive a detailed individual statement of the services provided to the trustor’s beneficiary during the previous 12 months and the services to be provided during the following 12 months. The board shall make a copy of the individual statement available to any beneficiary, upon request.
L. 1985, c. 424, s. 11.
3B:11-30. Qualification of indigent persons
The board may accept gifts and use surplus trust funds for the purpose of qualifying as beneficiaries any indigent person whose family members lack the resources to make a full contribution on that person’s behalf. The extent and character of the services and selection of beneficiaries are at the discretion of the board. The board may not use surplus trust funds to make any charitable contribution on behalf of any beneficiary or any group or class of beneficiaries. The board may accept gifts to meet start-up costs, reduce the charges to the trust for the cost of administration, and for any other purpose that is consistent with this act. Gifts made to the trust for an unspecified purpose shall be used by the board either to qualify indigent persons whose families lack the means to qualify them as beneficiaries of the trust or to meet any start-up costs that the trust incurs.
L. 1985, c. 424, s. 12.
3B:11-31. Special requests; individual trusts
The board may agree to fulfill any special requests made on behalf of a beneficiary as long as the requests are consistent with this act and provided an adequate contribution has been made for this purpose on behalf of a beneficiary. The board may agree to serve as trustee for any individual trust created on behalf of a beneficiary, regardless of whether the trust is revocable or irrevocable, has one or more remaindermen or contingent beneficiaries, or any other condition, so long as the individual trust is consistent with the purposes of this act.
L. 1985, c. 424, s. 13.
3B:11-32. Community trust irrevocable
14. A community trust for persons with severe chronic disabilities is irrevocable, but the trustees in their sole discretion may provide compensation for any contribution to the trust to any trustor who, upon good cause, withdraws a beneficiary designated by the trustor from the trust, or if it becomes impossible to fulfill the conditions of the trust with regard to an individual beneficiary for reasons other than the death of the beneficiary. The trustor may also designate one or more remaindermen at the time the contribution is made to the trust.
L.1985,c.424,s.14; amended 1993,c.224,s.4.
3B:11-33. Not deemed asset
