What Happens if a Sibling Will Not Sign a Probate Waiver in New York City?

When a sibling does not want to sign a waiver for the probate process to proceed faster, you have two options: negotiate and mediate or get a citation from the court.

Probate is the judicial process where a will is proved to be valid and authentic or, in the absence of a will, where the estate is settled in accordance with state laws of intestacy.

The Intestate Heirs as Interested Parties

When a parent dies, the children are usually the heirs (also called distributees) who stand to inherit in case there is no will. These distributees, even if they are not named as beneficiaries in the will, must be notified and should appear before the court to show cause why the reliefs requested in the petition should not be granted. These reliefs usually state:

• If it’s a petition for the probate of the will, that the will be admitted as genuine and authentic, that the nominated executor be appointed, and distribution be made in accordance with the will; or
• If it’s a petition for administration, that the person petitioning be appointed as administrator, and that the estate be distributed in accordance with state laws of intestacy

When the Sibling Refuses to Sign

In petitions for probate or administration, the petitioning executor or administrator requests the distributee to sign a waiver and consent to speed up the probate process. Signing this waiver and consent mean that the distributee waives his right to be notified and consents to the reliefs requested in the petition.

Sometimes, the sibling does not agree to the reliefs requested in the petition. For example, the sibling might not want the will to be admitted as genuine because he wants the estate to be distributed under intestate laws since he is not a beneficiary of the will. Or he agrees to the will but does not want the executor to be appointed. Or he does not want the administrator to be appointed and prefers a different person to be appointed as administrator. In these cases, the sibling is most likely not going to sign the waiver and consent form.

When the sibling does not sign the waiver and consent form, the petition will be filed without this waiver. The court will then review the documents and see that a necessary party, such as your sibling-distributee, has not executed the waiver and consent. Thus, the court will then issue a citation to your sibling, ordering your sibling to appear before the court on a specified date and show cause why the reliefs stated in the petition should not be granted. When your sibling receives this citation, this is usually the time that your sibling lawyers up because he wants to be represented by an attorney in the hearing before the court. As much as possible, we try to avoid this situation where attorney’s fees can eat up the beneficiaries’ equity in the estate. For this reason, we always advise our clients to attempt to negotiate with their siblings in getting the consent and waiver form signed in order to preserve the estate.

Delay in Probate Process When Sibling Refuses to Sign

When a sibling refuses to sign the waiver and consent form, it can delay the probate process for months, and even years if the will is subsequently contested. This is because, once your estate lawyer files the petition for probate or administration, instead of the court clerk immediately finding your petition sufficient and complete, the court issues a citation to your sibling ordering your sibling to appear before the court. Your sibling will then state his case on why the reliefs in the petition should not be granted. The court will then decide whether your sibling has a case.

Usually, the sibling will object to the admission of the will and will request for SCPA 1404 examinations of the attorney-drafter and the witnesses to see if the will was properly executed. The expenses for SCPA 1404 examinations are charged to the estate and can delay the admission of the will to probate for another six months.

In the meantime, however, the petitioning executor can request to be appointed as preliminary executor with the power to pay estate debts and expenses but with no power to distribute remaining estate assets to beneficiaries.

Estate matters can be complex. When there are conflicting parties, it is important to be represented by an estate lawyer with sufficient experience who can adequately represent your interests. Should you need assistance in handling estate matters, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].