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Wednesday, November 22, 2017

RULE 4:82. Matters In Which The Surrogate's Court May Not Act

RULE 4:82. Matters In Which The Surrogate's Court May Not Act 

Unless specifically authorized by order or judgment of the Superior Court, and then only in accordance with such order or judgment, the Surrogate's Court shall not act in any matter in which (1) a caveat has been filed with it before the entry of its judgment; (2) a doubt arises on the face of a will or a will has been lost or destroyed; (3) the application is to admit to probate a writing intended as a will as defined by N.J.S.A. 3B:3-2(b) or N.J.S.A. 3B:3-3; (4) the application is to appoint an administrator pendente lite or other limited administrator; (5) a dispute arises before the Surrogate's Court as to any matter; or (6) the Surrogate certifies the case to be of doubt or difficulty. 

RULE 4:84. Complaints In Cases In Which Surrogate's Court Not Able To Act


 RULE 4:84. Complaints In Cases In Which Surrogate's Court Not Able To Act 
4:84-1. In General 
In any case in which, under R. 4:82, the Surrogate's Court may not act, any person in interest may file a complaint and apply for an order directed to all other interested parties to show cause why the relief sought should not be granted. Service shall be as provided by R. 4:67-3. 

4:84-2. Probate in the Superior Court 
If a will is sought to be proved in the Superior Court, proceedings for discovery shall be available pursuant to R. 4:10, R. 4:12 to 4:19 inclusive, R. 4:21 and R. 4:23. On the taking of a deposition, a photocopy of the will shall be marked for identification by the person before whom the deposition is taken. If the will is admitted to probate, the judgment of the Superior Court shall direct that the will be filed with and recorded by the Surrogate's Court. Letters of appointment shall then be issued by the Surrogate's Court. 
Note: Source-R.R. 5:3-1 and 5:3-7. New R. 4:84-2, based on deleted second sentence of former R. 4:80-2(a), adopted June 29, 1990 to be effective September 4, 1990. 
4:84-3. Contested Administration 
Where administration of an estate has been contested, the judgment of the Superior Court granting administration shall direct issuance and recording of letters of administration by the Surrogate's Court. 
Note: Source-R.R. 4:103-4; former R. 4:84-3 deleted, new caption and text adopted June 29, 1990 to be effective September 4, 1990. 
4:84-4. Appointment of Substituted Trustees 
An action for the appointment of a substituted trustee (a trustee not named in the trust document) of an inter vivos or testatmentary trust shall be brought pursuant to R. 4:83. The complaint shall have attached a copy of the trust instrument and the acceptance by the person or persons seeking the appointment. The order to show cause shall be served upon all persons having an interest in the trust, vested or contingent, except as otherwise provided by R. 4:26-3 (virtual representation), and upon any trustees then serving. The judgment shall direct the issuance by the Surrogate's Court of letters of trusteeship. 
Note: Source-R.R. 4:100-2 and 4:100-3. Former R. 4:81-2 and 4:81-3 deleted and new R. 4:84-4 adopted June 29, 1990 to be effective September 4, 1990; amended July 5, 2000 to be effective September 5, 2000. 
4:84-5. Appointment of Administrator Pendente Lite or Other Limited Administrator 
No order appointing an administrator pendente lite or other limited administrator shall be entered by the Superior Court without either notice to the persons in interest or their written consent, unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable damage will result before notice can be served and a hearing had thereon. If an order is granted without notice, it shall give any person in interest 
leave to move for the discharge of the administrator on no more than 2 days' notice. This rule shall not apply to the administrator ad prosequendum in an action for wrongful death. 

Note: Source-R.R. 4:99-8. Amended July 26, 1984 to be effective September 10, 

4:67-2. Complaint; Order to Show Cause; Motion


 RULE 4:67. Summary Actions 
4:67-1. Applicability 
This rule is applicable (a) to all actions in which the court is permitted by rule or by statute to proceed in a summary manner, other than actions for the recovery of penalties which shall be brought pursuant to R. 4:70; and (b) to all other actions in the Superior Court other than matrimonial actions and actions in which unliquidated monetary damages are sought, provided it appears to the court, on motion made pursuant to R. 1:6-3 and on notice to the other parties to the action not in default, that it is likely that the matter may be completely disposed of in a summary manner. 

4:67-2. Complaint; Order to Show Cause; Motion 
(a) Order to Show Cause. If the action is brought in a summary manner pursuant to R. 4:67-1(a), the complaint, verified by affidavit made pursuant to R. 1:6-6, may be presented to the court ex parte and service shall be made pursuant to R. 4:52-1(b), except that if the action is pending in the Law Division of the Superior Court, it shall be presented to the Assignment Judge or to such other judge as the Assignment Judge designates. The proceeding shall be recorded verbatim provided that the application is made at a time and place where a reporter or sound recording device is available. The court, if satisfied with the sufficiency of the application, shall order the defendant to show cause why final judgment should not be rendered for the relief sought. No temporary restraints or other interim relief shall be granted in the order unless the defendant has either been given notice of the action or consents thereto or it appears from the specific facts shown by affidavit or verified complaint that immediate and irreparable damage will result to the plaintiff before notice can be served or informally given. The order shall be so framed as to notify the defendant fully of the terms of the judgment sought, and subject to the provisions of R. 4:52, it may embody such interim restraint and other appropriate intermediate relief as may be necessary to prevent immediate and irreparable damage. The order to show cause may be in the form set forth in Appendix XII-F through XII-H to the extent applicable. 
(b) Motion for Order to Proceed Summarily. Actions referred to in R. 4:67-1(b) shall be commenced, and proceedings taken therein, as in other actions, except as herein provided. The notice of motion to proceed summarily shall be supported by affidavits made pursuant to R. 1:6-6 and, if addressed to the defendant, may be served with the summons and complaint; but it shall not be returnable until after the expiration of the time within which the defendant is required to answer the complaint. If the court is satisfied that the matter may be completely disposed of on the record (which may be supplemented by interrogatories, depositions and demands for admissions) or on minimal testimony in open court, it shall, by order, fix a short date for the trial of the action, which shall proceed in accordance with R. 4:67-5, insofar as applicable. 

Note: Source-R.R. 4:85-2. Paragraph (a) amended July 26, 1984 to be effective September 10, 1984; paragraph (a) amended July 13, 1994 to be effective September 1, 1994; paragraph (a) amended July 12, 2002 to be effective September 3, 2002; paragraph (a) amended July 9, 2008 to be effective September 1, 2008. 
4:67-3. Service of Order to Show Cause 
If the order to show cause issues ex parte pursuant to R. 4:67-1(a), no summons shall issue unless the court otherwise orders. Process shall be a copy of the order to show cause, certified by the plaintiff's attorney to be a true copy. The order to show cause, together with a copy of the 
complaint and affidavits similarly certified, shall be served within this State at least ten days before the return day and in the manner prescribed by R. 4:4-3 and R. 4:4 for the service of a summons, unless the court orders shorter or longer service or some other manner of service. Service may be made outside this State, or by mail, publication, or otherwise, all as the court by order directs, provided the nature of the action is such that the court may thereby acquire jurisdiction. 
Note: Source-R.R. 4:85-3. Amended July 5, 2000 to be effective September 5, 2000. 
4:67-4. Answers; Objections; Demand for Jury Trial 
(a) Ex Parte Order to Show Cause. If the order to show cause is issued ex parte pursuant to R. 4:67-1(a), the defendant shall, not later than 3 days before the return date, or within such further time as the court may allow, serve and file either an answer, an answering affidavit, or a motion returnable on the return day; in default thereof, the action may proceed ex parte. No counterclaim or cross-claim shall be asserted without leave of court. 
(b) Motion for Order to Proceed Summarily. A plaintiff proceeding pursuant to R. 4:67-1(b) shall be deemed to have waived any right to trial by jury to which plaintiff would otherwise have been entitled whether or not the motion is granted. A defendant entitled to trial by jury shall make demand therefor in accordance with R. 4:35, except that if the motion is returnable prior to the expiration of the time for demand therein provided, the demand shall be served and filed not later than 3 days before the return date of the motion and may be appended to any paper served and filed by the defendant in response to the motion. If the defendant has a right to and has demanded a trial by jury, the court, upon finding the existence of a genuine issue to a material fact, shall order the action to proceed as in a plenary action in accordance with R. 4:67-5. 

Note: Source-R.R. 4:85-4 (first two sentences), 4:85-5 (fourth sentence). Paragraph (b) amended July 7, 1971 to be effective September 13, 1971; paragraph (b) amended July 13, 1994 to be effective September 1, 1994. 
4:67-5. Hearing; Judgment; Briefs 
The court shall try the action on the return day, or on such short day as it fixes. If no objection is made by any party, or the defendants have defaulted in the action, or the affidavits show palpably that there is no genuine issue as to any material fact, the court may try the action on the pleadings and affidavits, and render final judgment thereon. If any party objects to such a trial and there may be a genuine issue as to a material fact, the court shall hear the evidence as to those matters which may be genuinely in issue, and render final judgment. At the hearing or on motion at any stage of the action, the court for good cause shown may order the action to proceed as in a plenary action wherein a summons has been issued, in which case the defendant, if not already having done so, shall file an answer to the complaint within 35 days after the date of the order or within such other time as the court therein directs. In contested actions briefs shall be submitted. 
Note: Source-R.R. 4:85-4 (third sentence), 4:85-5 (first three sentences), 4:85-7; amended July 13, 1994 to be effective September 1, 1994. 
4:67-6. Summary Proceedings to Enforce Agency Orders 
(a) Applicability of Rule. This rule is applicable to (1) all actions by a state administrative agency as defined by N.J.S.A. 52:14B-2(a) brought to enforce a written order or determination entered by it, whether final or interlocutory, and whether the order to be enforced requires the payment of money or imposes a non-monetary requirement or includes a combination of monetary and non-monetary remedies; and (2) 


all such enforcement actions brought by a party to the administrative proceeding in whose favor a written order or determination was entered affording that party specific relief. 
(b) Form of Action; Where Brought; Notice. 
(1) Final Orders. Actions pursuant to paragraph (a) of this rule shall be brought in accordance with R. 4:67 unless an applicable statute requires a plenary action in a specific matter. If the order sought to be enforced requires only the payment of money, it may be brought in the Superior Court, Law Division, or in any other court having statutory jurisdiction over the specific matter. If the order sought to be enforced provides in full or in part for a non-monetary remedy, the action shall be brought in a trial division of the Superior Court subject to motion pursuant to R. 4:3-1(b) for transfer to the other trial division. 
(2) Interlocutory Orders. An interlocutory order of an administrative agency to which R. 1:9-6 applies shall be enforced pursuant to the provisions of that rule in either trial division of the Superior Court. All other interlocutory orders shall be enforced as provided by subparagraph (b)(1) hereof. 
(3) Notice to Agency; Intervention. Unless the action is brought by an agency seeking to enforce its own judgment or order, the plaintiff shall serve a copy of the complaint and order to show cause on the agency whose judgment or order is the subject of the action. The agency shall be permitted to intervene in the action on application made on or prior to the return date of the order to show cause. 
(c) Review of Agency Orders; Stay of Enforcement. 
(1) Generally. Except as otherwise provided by subparagraph (c)(2) hereof, if a party appeals pursuant to R. 2:2-3(a)(2) from a final agency order or, pursuant to R. 2:2-4, seeks leave to appeal from an interlocutory agency order, an enforcement action may be stayed, before or after its commencement, only by the Appellate Division, which shall enter such order respecting a stay, conditions thereof, the order of proceedings, or otherwise as it deems appropriate. 
(2) Enforcement Pursuant to R. 1:9-6. If enforcement of an order is sought pursuant to R. 1:9-6 and no proceeding is pending in the Appellate Division to review or seeking to review its validity, such review shall be had in the trial court by way of defense to enforcement. If there is already pending a review proceeding in the Appellate Division when the enforcement proceeding is instituted, the Appellate Division, on motion, may enter an order transferring the review proceeding to the trial court for consolidation with the enforcement proceeding or may enter any such order respecting the order of proceedings as it deems appropriate. 
(3) Nature of Proceedings. Except as otherwise provided by subparagraph (c)(2) of this rule the validity of an agency order shall not be justiciable in an enforcement proceeding. 


Note: Adopted July 22, 1983 to be effective September 12, 1983; paragraph (a), paragraph (b) caption, and paragraph (b)(2) amended, and paragraph (b)(3) adopted June 29, 1990 to be effective September 4, 1990. 

Qualifications of executors and administrators and acceptances of trusteeship


 4:96-1. Qualifications; Acceptances 
Qualifications of executors and administrators and acceptances of trusteeship and guardianship may be taken outside this State under oath by any person before whom depositions may be taken under R. 4:12-2 and R. 4:12-3, and when the qualification of an executor or an administrator with the will annexed is taken outside this State, the will need not be annexed to the qualification. Such qualifications and acceptances may be taken within this State before any person authorized by the laws of this State to administer oaths. 
 0. 
4:96-2. Renunciations 
A renunciation by any person named as a fiduciary in any will or other instrument or entitled to letters testamentary, of administration, guardianship or trusteeship, shall be acknowledged before an officer qualified to take acknowledgements of deeds, and shall be recorded by the Surrogate as the deputy clerk of the court. 
Note: Source-R.R. 4:115-3; former R. 4:97-3 amended and rule redesignated June 29, 1990 to be effective September 4, 1990. 
4:96-3. Money Judgments in the Chancery Division, Probate Part 
When a money judgment is rendered by the Superior Court, Chancery Division, Probate Part, the proponent of the judgment may transmit the original, together with the fee prescribed by N.J.S.A. 22A:2-7, to the Clerk of the Superior Court for entry in the Civil Judgment and Order Docket pursuant to R. 4:101. 
Note: Adopted July 11, 1979 to be effective September 10, 1979; caption and text of former R. 4:99-4 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; amended June 28, 1996 to be effective September 1, 1996. 
4:96-4. Notice to Surety 
In any proceedings brought to review the conduct or performance of the duties of a bonded fiduciary, the party bringing the action shall give the surety notice of said motion or proceedings as in the case of an interested party. 
Note: Adopted July 22, 1983 to be effective September 12, 1983; former R. 4:99-5 amended and rule redesignated June 29, 1990 to be effective September 4, 1990. 
4:96-5. Bond From Corporate Fiduciary 
No corporation appointed as fiduciary shall be required to give bond without surety or otherwise, except as provided by law. 

Note: Source-R.R. 4:103-2; former R. 4:84-2 redesignated June 29, 1990 to be effective September 4, 1990 

2C:21-3 . Frauds relating to public records and recordable instruments

2C:21-3 .  Frauds relating to public records and recordable instruments
      a.  Fraudulent destruction, removal or concealment of recordable instruments.    A person commits a crime of the third degree if, with purpose to deceive or injure anyone, he destroys, removes or conceals any will, deed, mortgage, security instrument or other writing for which the law provides public recording.

      b.  Offering a false instrument for filing.    A person is guilty of a disorderly persons offense when, knowing that a written instrument contains a false statement or false information, he offers or presents it to a public office or public servant with knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office or public servant.

Thus, it is a criminal offense to destroy someone else's will.

3B:10-13 . Duty to apply in this State for original letters of administration

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.

3B:3-24 Where a will of a resident is to be probated; effect of failure to probate.


3B:3-24  Where a will of a resident is to be probated; effect of failure to probate.
 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.