Consenting to the Probate of a Will

By: Roman Aminov, Esq.

Have you lost a family member and received a document called a “Waiver of Process; Consent to Probate”? If you are like most people, you may be confused about what this means, and more importantly, if you should sign it. This article will help explain the purpose of the document, and what you should discuss with your lawyer after you receive it.

Why did I receive a “Waiver of Process; Consent to Probate”?
The reason you received this document, usually from an estate attorney representing the nominated executor, is because the decent had a will which needs to be submitted to Surrogate’s Court for probate. Before a will can be probated and an executor appointed, all of the distributees (family who would have received a portion of the estate if there had been no will) have to be given an opportunity to object to (1) the validity of the will and (2) to the appointment of the executor. Distributees are given the opportunity to object at a court hearing at the Surrogate’s Court and are issued a formal notice called a “Citation” advising them of the time and place of the hearing. There are various reasons why one would want to object, and different grounds for objections to probate, which are outside of the scope of the article and should be discussed with an experienced probate attorney.

In order to save the estate time and money by avoiding a hearing, the nominated executor can ask the distributees to sign a “Waiver of Process; Consent to Probate” instead, which is sent along with a copy of the last will and testament.

What happens if I do not sign?
As we mentioned, if you don’t sign the “Waiver of Process; Consent to Probate”, the court will need to issue a Citation and a court date to give you the opportunity to object to the will or to the appointment of the executor.

What happens if I sign?
If you sign the document, you are stating that you agree that the will is valid and should be accepted as the last will and testament of the decedent, and that the nominated executor should be appointed as the executor of the estate. If you are a beneficiary of the estate, you still retain your right to make sure that you receive your inheritance.

What if I consent to probate, but want to make sure the executor acts properly?
I often have clients who have no problem with the will but who want to make sure that the executor acts properly. In those cases, a distributee or beneficiary can hire their own estate attorney who will keep in touch the executor’s attorney regarding the status of the estate and make sure things keep moving. At the end of the administration of the estate, your attorney can request an accounting to make sure that all of the assets were collected and all expenses were reasonable and properly paid.

What if I believe the will is invalid or that the nominated executor should not serve?
If you have any doubts about the will or the appointment of the nominated executor, you should not sign the document and immediately speak to a probate attorney to learn your rights. A probate attorney can challenge the validity of the will or the appointment of the nominated executor to serve.

This information is general in nature, and before you sign any documents, speak with an estate attorney to learn your rights by calling 347-766-2685 for a free phone consultation.

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