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If you have received a document called a “Waiver of Process; Consent to Probate”, from the nominated executor of a Will then you should stop and consider your rights before signing anything.
This document (the “Waiver and Consent”) was sent to you because the nominated Executor is trying to “probate” one of your relative’s Will. Probating a Will means that the nominated Executor is submitting a petition to Surrogate’s Court and asking that the Court issue “Letters Testamentary” to the nominated Executor. The issuance of Letters Testamentary validates the Will and allows the Executor to act on behalf of the estate.
Before the nominated Executor can act on behalf of the estate, the Will must be probated in the Surrogate’s Court and the nominated Executor must be appointed by the Court. Before the Will can be probated, the law requires that every person that has an interest in the estate be given notice and an opportunity to object to the Will.
A person seeking to probate a Will in New York must either obtain this signed Waiver and Consent from every distributee of the estate, or go through a longer and more expensive process of obtaining a court date and serving formal notice on all distributees that do not consent. This formal notice is called a “Citation” and must be issued by the Surrogate’s Court.
The Waiver and Consent is used to expedite the process. Usually when all the distributees agree that the Will is valid and should be admitted to probate, they will sign the Waiver and Consent in order to save time and expense to the estate.
If you sign the Waiver and Consent, you are stating that you agree that the purported Will is a valid and that you consent that the person nominated in the Will should be appointed as the Executor of the Estate.
You are not required to sign the Waiver and Consent. However, if you do not sign the Waiver and Consent, then the person bringing the probate proceeding will be required to serve you with a Citation which gives you a date to appear in Surrogate’s Court, known as a citation return date.
You or your counsel must appear in court on this date and either formally object to the Will or request some limited discovery about the execution of the Will. If you do not object in a timely fashion, then you will lose your right to object to the Will. If you do not object, the Will will be admitted to probate and the nominated Executor of the Estate will be appointed by the Surrogate’s Court.
By Eric J. Einhart – Guest Blogger