I Received a “Waiver of Process; Consent to Probate” From an Executor of a Will. What Should I Do?

When a person dies with a will, it must be probated before the executor can distribute the assets. Probate refers to the court process of administering the estate. However, before the will is admitted to probate, interested parties have the opportunity to challenge the validity of the will and the named executor. Interested parties include any heirs that would have inherited had the deceased died intestate (without a will), for example, spouses, children, siblings, cousins, and parents.

A waiver of process consent to probate speeds up this procedure in New York. In a waiver of process consent to probate, the beneficiary can consent that the will is valid and that the person named on the form should be the executor of the estate.

Should You Sign the Waiver of Process Consent to Probate?

Essentially, when you sign a waiver of process consent to probate form, you are letting the court know that you have no issues with the will, and you are forfeiting your right to challenge the will and appointment of the nominated executor. There are two reasons why you should not sign the waiver of process consent to probate:

1. You object to the will being admitted to probate. If you feel like the will is invalid and does not represent the deceased’s true intentions, you should immediately reach out to an estate planning attorney before signing the form. Some scenarios that would cause a will to be invalid include:

• The will was not properly executed (no witnesses, not signed, etc.);
• The testator revoked the will;
• The testator lacked the mental capacity to make the will;
• The testator was induced by fraud into making or executing the will; or
• Undue influence was exerted upon the testator in the making of the will.

2. You object to the named executor. There are several different reasons why someone would object to the nominated executor. Perhaps the individual does not have the mental capacity to perform in the role, is dishonest, is a convicted felon, or is suffering from a substance abuse disorder. If you feel that instead, you should be the estate administrator, you should not sign the consent form. There are situations where an executor could be removed during the process, but the grounds are primarily based on fraud, mismanagement of assets, conflict of interest, and breach of fiduciary duty.

If you do sign the waiver of process consent to probate, you are forfeiting your right to challenge the will. You cannot later change your mind and decide to contest the will. The form also waives the beneficiary’s right to be served notices as the probate progresses.

What Do You Do After You Sign the Waiver of Process Consent to Probate?

If you sign the waiver of process consent to probate, there is nothing further you need to do. It is important to note that by signing this form, you are not waiving away your inheritance. You are simply allowing the named administrator to probate the will. If no one else challenges the will, the court will declare it to be a valid instrument, and the assets will pass according to the instructions in the will.

What If You Do Not Sign the Waiver of Process Consent to Probate?

If you do not sign the waiver of process consent to probate, the court will issue you a citation. A citation is a court-ordered document that contains a date and time to appear. At the proceeding, you will be able to request discovery or present evidence that the will is invalid or named administrator should be removed. If the will contest is successful, the court will strike the will down, and the assets will pass according to intestate laws.

If you fail to appear at the proceeding, you are considered to have consented to the probate. It results in the same outcome as if you had signed the waiver and consent to probate form. You need to appear in court and contest the will.

Your Phoenix Probate Attorney

If you have received a waiver of process consent to probate or a citation and would like to speak to an estate lawyer before making a decision on whether to sign or appear in court, you should reach out to a local Phoenix probate attorney. Call Nicole Pavlik Law Firm today at 602-635-6176 to schedule a free consultation and discuss your probate needs.