In order to commence estate proceedings, it is first necessary that all persons essential to the estate receive notice. This would include any person named in the will or anyone who would have standing to object to the will. If there is no will, it would include all distributees — next of kin who would inherit pursuant to intestacy. In order to streamline the proceedings , a lawyer representing the petitioner seeking to be either the executor or administrator will start by mailing a waiver to every necessary person .
If you are interested in an estate, you will most likely receive a letter from the petitioner’s lawyer accompanied by a copy of the will (should be a certified copy but this is often honored in the breach) and a waiver. If there is no will, only a waiver will be sent. The waiver is a legal consent for you to sign agreeing to admit the will to probate or to consent to the appointment of the petitioner to be an administrator of the estate if the proceeding is for an intestate decedent.
By signing the waiver in front of a notary and returning it back to the estate’s lawyer you are irrevocably consenting to the admission of the will to probate and the appointment of the executor or adxministrator named in the petition. You can generally NOT reverse this decision at a later time. It is therefore important that you do not execute the waiver without giving it some thought. It might also make sense to consult with a lawyer. There are many valid reasons to object to a will or to the appointment of a fiduciary but signing the waiver will extinguish all of your objections.
If you refuse to sign the waiver, you will eventually be served with a citation. If this is a New York proceeding (the only kind your lawblogger will advise you on since my license ends when I cross the state line) you will be served by a process server if you live in New York but may receive the paper in the mail if you are in some other state. The citation is the same as a summons. It provides you with notice that the petition will be heard by the surrogate at a particular date and time and in a particular Surrogate’s Court . You may hire a lawyer to represent you at that time or you may simply appear for the calendar call………but stay home and do nothing and you will be in default and you will be deemed to have consented to the granting of the relief demanded in the petition.
If you go on your own, simply rise, come forward and answer the calendar when the case is called. You will be given the opportunity to have the case adjourned to a time when you can have a lawyer represent you. It is also likely that the court will assign a court attorney (a lawyer who works for the court) to hold a conference with you and the others appearing that day on the case. Minor issues can generally be resolved and you will have gained additional information to bring to your lawyer when he or she is retained.
Normally, the Surrogate’s Court is fairly friendly to non-lawyers appearing for the first time on a matter. The judge is usually aware that you are in court having lost somebody close to you. Chances are you will leave the building after being pointed in the right direction.