If you are a beneficiary of a Trust or Estate, or a next-of-kin to a decedent whose estate is involved in a proceeding in Surrogate’s Court, you should consult with a qualified attorney before waiving your rights or signing any documents that may impact your rights.
Let’s use the estate of a hypothetical client, John, as an example. John, whose wife passed away 10 years ago, has five children.
If John dies without a will, his children are his next-of-kin, also known as his “distributees.” Under New York State law, John’s children would each be entitled to receive an equal percentage of his estate, and they would all have a right to serve as the administrator of his estate.
If John executed a Last Will and Testament during his lifetime that existed at the time of his death, then the Will names beneficiaries of his estate and nominates an “Executor” to handle the affairs of his estate. There is no law that states John must name any of his children as beneficiaries of his Will or nominate any of them as Executor. You have the right to disinherit your children.
Any of John’s children—regardless of whether they are named as beneficiaries under the will or nominated as Executor—may object to the probate of the Will, or may seek discovery prior to objecting to the Will in order to learn more about the circumstances of his estate plan and the validity of the Will.
Whether John leaves a Will or not, his next-of-kin (“distributees”) have a right to object to the probate of the will or the appointment of an administrator.
Typically, the person who is petitioning the court to either probate the will or be appointed as Administrator sends each distributee a waiver of citation and either a consent to probate (if there is a Will) or a consent to administration (if there is no Will).
By executing a waiver and consent document, the distributee waives his or her right to a citation being issued by the court, and consents to the court’s appointment of the administrator or executor.
If you sign a waiver and consent document, you may later be barred from exercising your rights in the estate proceeding in the future. If you have received a waiver and consent document, it is important to consult with an attorney to review the document and fully understand your rights before you waive them.
It’s a stressful and emotional situation, especially when talking about life-sustaining treatment. No one wants to have this burden to begin with, much less with a monkey wrench thrown in. If you need help with this process, please do not hesitate to contact us with questions.
Eric J. Einhart
Russo Law Group, P.C.
100 Quentin Roosevelt Blvd., Suite 102
Garden City, NY 11530