What if an Heir Will Not Sign the Form For Probate in New York City

If heir will not sign the form for probate, it will usually not make much of a difference as far as the outcome of probate, it will just make the process longer and more expensive. In probate proceedings, there are several different forms that an heir may refuse to sign, and the type of form the heir refuses to sign will determine the consequences and remedies of an executor or administrator. The most common form is the Waiver of Process and Consent for Probate, which comes in the very beginning of the probate process, and then there is also the Receipt and Idemnity agreement which comes later.

What if Heir Will Not Sign the Waiver and Consent for Probate

The first document an heir will usually be requested to sign is a waiver and consent form. The proposed executor or administrator will normally ask the heir to sign this waiver and consent form before the petition for probate or administration is filed.

The waiver and consent form states that the heir waives the issuance and service of citation, consents that the court admit to probate the decedent’s will (if applicable), and agrees that letters testamentary or letters of administration be issued to the proposed executor or administrator.

When heirs do not sign the waiver and consent form, the possibility that they would contest the will or the issuance of letters of administration is higher. The proposed executor or administrator’s remedy is to then request the court to issue a citation to the heir, directing the heir to appear before the court and show cause why the reliefs stated in the petition for probate or administration should not be granted.

This delays the probate proceedings because the proposed executor or administrator must wait for the court to issue the citation, wait for the arrival of the hearing date before the judge, and thereafter wait for the decision of the judge in the probate of the will (if applicable) and grant of letters testamentary or of administration.

Sometimes, the heir’s non-signing of the waiver and consent for probate is a preliminary step to contesting the will. In New York, when the will is contested SCPA § 1404 examinations ensue, which further delays the proceeding, because depositions of the notary, the witnesses, and the proponent are taken before objections are made and before the court can make the decision to admit the will to probate. In the meantime, however, the proposed executor or administrator may request for the issuance of preliminary letters to collect the assets, pay the debts, and administer the estate of the deceased. The preliminary letters, however, prohibits the distribution of the estate to the heirs or beneficiaries.

In addition, when the heir does not sign the waiver and consent form for probate, the heir (or his lawyer) will be notified of all pleadings filed in the probate proceedings.

What if Heir Will Not Sign the Receipt and Indemnity Agreement in Accounting

Another document the heir needs to sign in probate proceedings is the receipt, indemnity, and release agreement. This receipt and indemnity agreement is a precondition to the heir’s receipt of the distribution from the estate. When the heir refuses to sign this, the accounting proceedings during probate will be prolonged, more estate assets will be used to pay for the prolonged legal proceedings, and the distribution of the heirs will be lesser.

An heir’s refusal to sign forms in probate may result to complications and could give rise to higher legal expenses due to prolonged proceedings. On the part of the executor or administrator, however, your probate attorney will be able to offer remedies to give you control over the estate, pending resolution of the legal issues in the proceedings.

Should you need assistance, 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].

The Citation Process

When heirs don't sign waivers, the court must issue citations to provide them notice. The citation process involves:

• The petitioner files an affidavit identifying everyone entitled to citation.
• The court issues citations setting a return date (typically 4-8 weeks out).
• Citations must be served on each cited party.
• Service can be by personal delivery, certified mail, or publication for those who cannot be located.
• Out-of-state and international citations follow specific service requirements.
• Affidavits of service must be filed showing how each party was served.

The citation process adds 4-12 weeks to the probate timeline, depending on the difficulty of service and the parties' locations.

Service on Difficult-to-Locate Heirs

Some heirs are difficult to locate, particularly in cases of estranged family members or those who have moved without leaving contact information. Options include:

• Skip tracing services. Professional investigators can locate hard-to-find individuals.
• Public records searches. Property records, court records, and other public databases.
• Social media. Often the easiest way to locate people in modern times.
• Last known address. Service at the last known address may be permitted.
• Service by publication. If diligent efforts fail, the court can authorize service by newspaper publication.
• Guardian ad litem. For unknown or missing heirs, the court can appoint a guardian to represent their interests.

Each option has cost and time implications. The diligence of the search must be documented to support unconventional service methods.

Preliminary Letters Testamentary

When probate is contested or delayed, preliminary letters allow the proposed executor to perform limited functions:

• Collecting and preserving estate assets.
• Paying ongoing expenses (mortgages, utilities, insurance).
• Managing the estate's business affairs.
• Filing tax returns and addressing tax matters.
• Pursuing claims that have time deadlines.

Preliminary letters typically prohibit distributions to beneficiaries until the will is admitted to probate. They provide enough authority to keep the estate functioning while the probate proceeding continues.

Settlement Discussions with Reluctant Heirs

An heir's refusal to sign waivers often signals concerns that could lead to a contest. Addressing those concerns through dialogue can sometimes resolve the situation:

• Schedule a meeting (with or without counsel) to discuss the heir's concerns.
• Provide information about the estate's assets, debts, and proposed administration.
• Address specific objections the heir has raised.
• Consider whether modifications to the proposed administration could satisfy the heir.
• Explore whether a settlement could resolve disputes about distribution.

Many potential contests are avoided through reasonable accommodation of legitimate concerns. The cost of communication is much less than the cost of contested proceedings.

1404 Examinations as Investigative Tools

SCPA § 1404 allows pre-objection examinations of the attorney who drafted the will and the attesting witnesses. The examinations:

• Allow potential contestants to assess whether to file formal objections.
• Provide an opportunity to explore the circumstances of will execution.
• Help establish the foundation for any contest that follows.
• Are not subject to no-contest clause penalties.
• May resolve the case if the examinations support the will's validity.

Many cases that look like potential contests resolve after 1404 examinations show that the will was properly executed. The examinations serve a screening function.

Formal Objections Procedure

If the heir proceeds to formal objections after 1404 examinations or in lieu of them, the procedure involves:

• Filing written objections specifying the grounds for contest.
• Service of the objections on all interested parties.
• Discovery between the parties.
• Motion practice on various procedural and substantive issues.
• Possibly a trial if the issues cannot be resolved on motion.
• Court decision and possible appeals.

Full contest litigation can take 18 months to several years, depending on complexity and court calendars.

The Receipt and Release Issue

Heirs who refuse to sign receipts and releases at distribution create separate problems:

• The executor cannot make safe distribution without the release.
• Without releases, the executor may need to file a judicial accounting.
• Judicial accountings add cost and time to the administration.
• The judicial decree settling the account provides protection equivalent to a release.

Executors should explain that the alternative to a release is judicial accounting, which is more expensive and delays distribution. Often, this explanation prompts the heir to sign rather than insist on formal proceedings.

Strategy for the Executor

When an heir refuses to cooperate, the executor's strategy options include:

• Patient engagement. Continued communication and explanation may eventually produce cooperation.
• Procedural escalation. Moving forward with formal procedures (citations, judicial accounting) when informal approaches fail.
• Settlement negotiation. Exploring compromise terms that might resolve underlying disputes.
• Litigation preparation. Building the case for any contest that may follow.
• Strategic timing. Choosing when to proceed with each step to maximize chances of cooperation.

The right strategy depends on the specific situation. Sometimes patience pays off; sometimes aggressive action is needed to move the case forward.