What to do if you Receive a Waiver of Process

What to do if you Receive a Waiver of Process

Jack comes home from a long day of work, having spent 20 minutes stuck on the R train due to signal problems. In his mailbox, Jack finds a letter from his sister, Emma. Emma is handling their mother’s estate and sent Jack a document called a “Waiver of Process; Consent to Probate.”

Waiver and Consent

Do I sign this?

Jack stares at the document for a few minutes, then throws it on the table, wondering if his day will get any worse or any more confusing. Should he sign a “Waiver of Process and Consent to Probate / Administration” or appear at the return date of a “Citation”?

A Waiver of Process; Consent to Probate is a form that gets sent out to the distributees, or, necessary parties, to a Probate proceeding.  The purpose of the form is twofold.

  1. The first purpose is to help the Court acquire jurisdiction over all of the parties. By signing the form, Jack is advising the Court that he is agreeing to have the Court make decisions that will have a binding affect on Jack. For example, where there is a Will, Jack is consenting to the Court reviewing the documents and accepting the Will to Probate. Where there is no Will, Jack is consenting to the Court reviewing the documents and appointing somebody to manage a decedent’s estate.
  2. The second purpose of the form is to advise the Court that Jack is consenting to a specific person being named the Executor (where there is a Will), or Administrator (where there is no Will). In this case, in signing the form, Jack is advising the Court that he is consenting to Emma’s appointment as the fiduciary.

The main questions that you should ask yourself before signing this form are:

  1. Am I objecting to the admission of the Will to probate? If the answer is yes, do not sign the form.
  2. Am I objecting to the person seeking to become the Executor/Administrator. If the answer is yes, do not sign the form.
  3. Do I want to be the Administrator (in cases where there is no Will)? If the answer is yes and if you are eligible to serve, then do not sign the form. For more information on whether you are eligible to serve, click here.

If Jack signs the Form, then there is nothing more for him to do. He does not have to appear in Court. Note that by signing the form, Jack has not waived his inheritance.

If Jack does not sign the Form, then the Court will need to issue a Citation. A Citation also serves two purposes. The first purpose is to acquire jurisdiction over Jack. The second purpose is for the Court to provide a date and time for Jack to appear and advise the Court of any issues that Jack has about the process.

Additional resources provided by the author

For more information, please contact estate planning attorney Regina Kiperman:
Phone: 917-261-4514
Email: rkiperman@gylawny.com
Or visit her at her new location:
Grimaldi & Yeung LLP
80 Maiden Lane
Suite 304
New York, NY 10038

Visit Regina on Google+

This post is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.

How to Avoid Probate Using Real Property Deeds as Estate Planning Devices

How to Avoid Probate Using Real Property Deeds as Estate Planning Devices

Alice and Bill live in Brooklyn. They are about to purchase their first home. Understanding how expensive the Brooklyn real estate market is, Alice’s mother, Cathy, is going to contribute some money towards the purchase of the property. But how can this deed be titled to both preserve the mother’s rights and avoid Probate.
There are a number of ways to hold property and not go through probate:

  • The first way to hold property is as “tenants in common.” Tenants in Common are considered to own their share of the property and be responsible for all costs of their pro rata share. When a tenant in common dies, that person’s share passes via that person’s estate. If a person has a Last Will and Testament, then the property will pass pursuant to that Will. If the property was transferred into a Trust, then the asset will pass pursuant to the terms of the Trust. If a person dies without a Will then the property will pass in accordance with the laws of intestacy (or, in New York, pursuant to Estates Powers and Trusts Law Section 4-1.1). The estate of a person who holds property as a tenant in common will then have to determine what needs to be done, including whether they need Court approval to sell. A tenancy in common may be the optimal way for two parties who have different remainder beneficiaries to hold property. However, this way of holding property may not be ideal for those parties desiring to pass their property to the same person, or, those trying to avoid probate (click here to learn more.)
  • Another way to hold property is as Joint Tenants. Joint tenants each own the full share of the property. Upon the death of one tenant, the second tenant automatically succeeds to the deceased tenant’s ownership interest in the property. There is no need to probate.

What about Cathy? Can Cathy’s contribution to the property be reflected in the deed? Perhaps Cathy should be given a “life estate.” A life estate is only available during a person’s lifetime. During life, the other parties cannot sell or do anything to the property without the consent of the life estate holder. A great option if Cathy does not want Alice to cash out and move out to another state. At death, the life estate holder’s interest is extinguished, again avoiding the need for probate.

What’s the best option for Alice, Bill, and Cathy? Under these circumstances, a joint tenancy deed with a life estate for Cathy.

Additional resources provided by the author

For more information, please contact estate planning attorney Regina Kiperman:
Phone: 917-261-4514
Email: rkiperman@gylawny.com
Or visit her at her new location:
Grimaldi & Yeung LLP
80 Maiden Lane
Suite 304
New York, NY 10038

Visit Regina on Google+

This post is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.