Legal Question in Wills and Trusts in New York
Waiver of Process
I have a daughter and 2 stepsons. My husband passed away in 2004. My husband's mother (a widow) passed away this week. Other than my family she leaves 2 sons with 2 children each and 1 greatgranchild each. We are here for the funeral today and the will was read afterwards. The lawyer is the husband of one of the other grandchildren. The will left everything to the 2 sons; my daughter and 2 stepsons have been asked to sign a ''Waiver of Process: Consent to Probate'' Obviously she has left them out of the will. When my husband became ill I suggested to her that it would be better to leave my husband out of the will (medicaid planning) and perhaps leave the children what would have been his. There has been no discord with any family member. I don't understand why they were left out (is that disinherited). But that is obviously her choice. But, I am curious why my children are asked to sign this form and why the hurry(before we leave for home by the weekend. My stepson in Hawaii apparently has been Fed-Ex this form. My mother-in-law's home has been sold and is supposed to close next week.
Thank you for any information you can provide.
3 Answers from Attorneys
Re: Waiver of Process
To speed up the probate process, otherwise service of citations will delay the matter. Unless you suspect fraud or undue influence there is little you can do.
Re: Waiver of Process
My condolences on your loss.
This is normal paperwork for probate. If not this form (if signed by your children), then another form will be submitted to the probate court. It's just forms.
On the other hand, there is also an opportunity for you to negotiate something for your children. Ask for a 'non-contest' settlement. About 1/10th of the total estate is reasonable under these facts.
This may cause some discord.
Use your own judgment. You are welcome to a consultation. Email is best to schedule a meeting.
Re: Waiver of Process
While it is typical in these situations for the children of a deceased child to inherit what their parent would have gotten, it is not unusual to leave everything just to the survivng children. The potential heirs, still family members, need to sign off so the probate process can continue. As David states, unless you want to contest the Will, and you may have grounds, let it be, as you will have an uphill battle, as what what done is not unusual.
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