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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].
About the Author
Albert Goodwin Esq. is a licenced New York attorney with over 17 years of courtroom experience. His extensive knowledge and expertise make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
