Should you sign a Waiver and Consent form?
The most frequently asked question in estate practice is whether someone should sign a Waiver of Process Consent to Probate form, or in the alternative, the Waiver of Citation Renunciation and Consent to Appointment of Administrator. Both these forms are prejudicial, which is why its so important to understand your rights, what the form says, and the consequences of execution, before overnighting your signature.
Since both forms are entirely different from one another, the Who, What, Where, When and How is addressed separately for each below.
Waiver of Process Consent to Probate
Who
If you are receiving this form, it means that someone has died, and that person left a last will and testament. The decedent’s name is listed in the caption of the form, for example:
Surrogate’s Court of the State of New York
County of New York
——————————————————X
Probate Proceeding,
Will of Anna Smith,
Deceased.
——————————————————-X
A quick look at the form will tell you the decedent’s name; his date of death; the date of the Will; the name of the executor; and the contact information for the estate attorney if the executor has legal representation.
What
The decedent may be a close family member or someone you never heard of until now – a long lost relative. Either way, if you are receiving this form, it usually means you are an heir of the decedent’s estate. The person sending the form (1) wants the will admitted into probate; and (2) is the executor listed in the will or someone who wants to be appointed as the personal representative of the estate.
Where & When
The caption will name the Court, the State and the County where the estate has been opened or will be opened. To gain more information on this estate, you can call the probate department of that county using the decedent’s name and file number listed (if any). In the five boroughs of New York State, the clerk will not give out any information over the phone unless you are the executor or the attorney of record for the estate. However, the file is a public record and is fully accessible by visiting the courthouse. A copy of the file can also be mailed to you by the Surrogate’s Court upon request and payment.
But, do make sure that the estate has in fact been filed before making a trip to the courthouse. Many times when the waiver and consent form is mailed to the heir, the proceeding has not yet been commenced in court.
How
When you receive a waiver and consent form, you have two options: sign the form or don’t sign.
By signing the form, you are essentially telling the court that you agree that the will being offered to probate as the last will and testament of the decedent is genuine; you consent to the person listed in the waiver and consent form to be appointed the executor of the estate; and you waive your right to a citation (ie a hearing date). Once signed and submitted to the court, its nearly impossible to take back your consent. There are very hard-and-fast rules when it comes to invalidating a waiver and consent form, all of which are costly and long to litigate. In short, without a compelling case of fraud, duress, or other misconduct, there is no recourse after submission.
Probate lawyers are often called upon by beneficiaries of an estate to remove an executor. When asked their reason for the removal, a common response is that the executor is a drunk or a has a history of theft or fraud. Why would someone then sign a waiver and consent form consenting to the appointment with full knowledge of this background information? A frequent reply by the beneficiary is “Oh, I was hoping for a quick distribution.”
If there are concerns about the nominated executor’s trustworthiness from the beginning, then maybe its not a good idea to voluntarily give him access to a large sum of money for his unilateral management.
By not signing, you send a message that you don’t agree some or all of the provisions. Maybe it’s because you have information that the nominated executor is not a trustworthy character, or you are disinherited from the will, or you are receiving less than your fair share. Whatever the reason is, make sure to attend the citation hearing or you will be deemed to have consented by default.
Waiver of Citation Renunciation and Consent to Appointment of Administrator
Who
If you have received the above-mentioned form by mail or personal service, it means that someone related to you has died, and that person left NO last will and testament. The decedent’s name should be listed in the caption as follows:
Surrogate’s Court of the State of New York
County of New York
——————————————————X
Administration Proceeding,
Estate of Anna Smith,
Deceased.
——————————————————-X
The form will have the deceased’s name, her date of death, the name of the person petitioning the court to become administrator, and the estate lawyer contact information if the proposed administrator has legal counsel.
What
If you are receiving this form, it indicates you are an heir of the decedent’s estate. The sender wants to open an estate for the decedent; and wants to become the administrator of the estate.
Where & When
To get more information on the estate, contact the administration department of the Court and County listed in the caption of the form. The clerk will ask for the decedent’s name, date of death and file number (if any).
How
You can either sign or don’t sign the Waiver of Citation Renunciation and Consent to Appointment of Administrator form.
By signing, you typically consent to the following: (a) the petitioner become the administrator of the estate; (b) no bond be posted for your share of the distribution; (c) you waive your right to a hearing date; and (d) you waive your right to make your own petition to become administrator of the estate.
Sometimes the decision is easy, and many times it requires careful consideration. Once consent is given and submitted to the Surrogate’s Court, it is nearly impossible to take it back. The good news is that in these situations, there are usually options worth exploring, including making your own application to be appointed as administrator. If you have reservations about the petitioner, speak to an estate lawyer as soon as possible. If you decide not to sign, do not miss the citation hearing date or it will be considered that you consented by failing to appear.
Contact Us
We’d love to help! Call us at 646-233-0826 to discuss your options. As probate lawyers in New York State, we are well-versed on many topics concerning probate, trusts and estates.