When a person dies and leaves a Last Will and Testament, the typical course to follow is to probate the Will. This Blog has published many posts concerning the probate process. The Will is filed with the Surrogate’s Court in the county where the decedent had his primary home. A Probate Petition is also filed with the Court which asks the Court to admit the Will to probate. Essentially, the request is to have the Court validate the document so that its provisions can then be followed in distributing the decedent’s estate assets.
After a Will is admitted to probate, letters testamentary are issued to the nominated Executor. In the probate proceeding, the Court issues a Citation which provides official notice to the decedent’s next of kin asking them to advise the Court as to whether they intend to object to the Will.It is at this juncture that it is essential that the next of kin follow the proper procedures so that they do not lose or waive their right to object to the Will. Very often the attorney for the person petitioning the Court for probate requests that the next of kin sign a form of Waiver and Consent rather than serving them with the official form of Citation. When a person who is the decedent’s next of kin (i.e. a distributee) signs a Waiver and Consent, essentially they are appearing in the Probate Proceeding and consenting to the validity of the Last Will that has been filed with the Court. The Waiver and Consent thereby prevents the distributee from filing objections to the Will. On the other hand, where the Waiver is not signed, the distributee has the right to appear in Court on the date set forth in the Citation and then request discovery pursuant to Surrogate’s Court Procedure Act 1404 and to file Objections to the Will.
When Objections are filed there is a Will Contest and estate litigation regarding the document that may involve issues of due execution, undue influence and testamentary capacity. The failure by a distributee to carefully understand and follow the proper procedure can result in a loss of his rights.
The case of Will of Miles was decided by Brooklyn Surrogate Diana Johnson on June 26, 2015. Miles shows the consequences that an occur where a potential contestant does not take precautions in the probate case. In Miles the decedent’s next of kin was his sister who had signed a Waiver and Consent regarding the probate of the decedent’s Will. However, the sister after waiting one year made an application to the Court to withdraw her consent and to be allowed to file objections. The sister claimed that she mistakenly signed the Waiver and Consent form.
The Court denied the sister’s application and found that she did not provide a good cause excuse for allegedly signing the form by mistake or a substantive basis for any objections that she might file. The sister also had been represented by an attorney at the time she signed the Waiver.
I have represented many individuals in connection with Surrogate’s Court Probate cases. It is important to understand the procedures involved with these cases and the effect that signing various papers and forms may have regarding a person’s rights. Objecting or consenting to a Will can involve many complex factors. If you have any questions regarding probate or other matters relating to an estate call me now for a free discussion regarding your issue.
New York Trust and Estate attorney Jules Martin Haas, Esq. has been representing clients in Surrogate’s Court and estate administration in Manhattan, Queens and Brooklyn throughout the past 30 years. If you or someone you know is involved with or has questions about Estate Settlement, please contact me at (212) 355-2575 for an initial consultation.
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