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Should I Sign a Waiver and Consent Document in a Probate Proceeding?

** This article has been revised from its original version which was published on May 11, 2017.

If you are a beneficiary of a trust or estate, or next-of-kin to a decedent whose estate is involved in a Surrogate’s Court probate proceeding, you should consult with a qualified attorney before signing any documents or waiving your rights.

To explain why, we’ll use the estate of a hypothetical client, John, as an example. His wife passed away 10 years ago, and he has five children.

Rights Under New York Probate Without a Will

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.

Rights Under New York Probate With a Will

If John had a Last Will and Testament available at the time of his death, then the will names the beneficiaries of his estate and nominates an “executor” to handle the estate administration. No law states John must name any of his children as beneficiaries of his will or appoint any of them as executors for help settling the estate. He may also choose to disinherit his children.

Any of John’s children—regardless of whether they are named as beneficiaries in the will or named as executors—may object to the probate of the will or seek discovery to learn more about the circumstances of his estate plan and the will’s validity.

Even without a will, John’s next-of-kin has a right to object to the probate of the will or the appointment of an administrator.

Waiver and Consent Documents John’s Children Receive

Typically, the person who petitions the court to either probate the will or be appointed as administrator sends each distributee a waiver of citation or consent to probate (if there is a will) or consent to administration (if there is no will).

By executing a waiver and consent document, John’s children waive their right to a citation issued by the court and consent to the court’s appointment of the administrator or executor.

What Happens When Signing a Waiver and Consent Document

John’s children may later be barred from exercising their rights in estate proceedings in the future. 

If you have received a waiver and consent document, it is important to consult with an estate planning attorney or probate attorney in New York to review the document and fully understand your rights before you waive them.

Settling an estate can be stressful and emotional, especially when it’s complicated by incapacitation and uncertainty around the will’s validity. No one wants this burden to begin with, much less with a monkey wrench thrown in. If you need help with the estate administration process, please do not hesitate to contact an estate planning attorney at Russo Law Group, P.C, with questions.

Benefit from our estate administration experience, as well as caring and compassionate staff. Consult with experienced lawyers familiar with estate planning in New York. We can ensure beneficiaries don’t unintentionally waive their rights. Contact us or take advantage of our free seminars and webinars to learn more about how Russo Law Group, P.C., may assist you with estate administration.

Russo Law Group, P.C.
100 Quentin Roosevelt Blvd., Suite 102
Garden City, NY 11530
800-680-1717

This Post Has 6 Comments

  1. If I’m the next to kin in my grandmothers estate and the family wants my brother and I to sign a Waiver of Final Settlement so the home can be sold. Can they move on with proceeds without my signing? Doesn’t the courts have to notify me?

    1. If you are a next-of-kin, you should consult with a qualified attorney before waiving your rights or signing any documents that may impact your rights.
      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.
      Please let us know if you are in need of our assistance. We can arrange a call with one of our Attorneys.

  2. As you mentioned, it can make things much simpler if you have your estate in order before you pass away. I didn’t realize that one can choose anyone to be named an Executor, and it doesn’t have to be a child, or even a relative. I’ll have to ask my parents if they have anything like this in place if anything were to happen to them.

  3. We are going thru something very similar. My father passed and its 4 of us daughters as next of kin. We are requesting a partial distribution and our administrator is suggesting us to do a waive service of citation on the said first amended application. Is this correct/ something we should do?

    1. Hello Juana,

      Thank you very much for your interest in our blog and for your comment. I am sorry to hear of the loss of your father.

      The administration process can be complicated, which is why we recommend retaining the services of an experienced Trust and Estate attorney. If there is a request for someone to sign any kind of Waiver, then we would always suggest that you speak with counsel so that you can make an informed decision before waiving any of your rights as a beneficiary/distributee.

      We would be happy to meet with you and your sisters to review relevant documents and facts involved and provide some guidance in moving forward. Please reach out to Ashley to schedule a time to meet. Our office number is 516-683-1717.

      Thank you.

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