I will try to make this as short as possible. About a year ago my father died, no heir was appointed, my sister just asked an attorney to fax me a document that said Waiver of Citation, Renunciation and Consent to Appointment of Administrator and to put her name on it making her administrator of his affairs. I am not in aggrement with this. My sister has exersized poor judgement in making decisions over the years and i am concerned this is going to be another one I do not want her to be administrator. I would like to continue working with the lawyer and possible negotiating with the other side for a decent settlement but i think if i sign this paper i will no longer be able to do this. I would also like to know in order to handle my fathers old lawsuit do i have to sign this paper.
Elder Law Attorney
based on what you have said, your father died without a will. As a result, his next of kin have a right to apply for letters of administration. In other words, you have as much right to the administrator as your sister. If you sign the document, you're waiving your rights and allowing your sister to act as administrator.
However, in most cases the Court will require her to file a surety bond to insure her performance. Additionally, when the state is settled, she will have to prepare a formal Accounting and file it with the court in order to have the surety bond discharged. At that time, you will also have a right to review the accounting and file any objections you may have. While this gives you some protection, is not the same is having control.if the 2 of you or the sole surviving children, everything is distributed 50-50 so there should be no difference. However, if your father had other assets in joint names with your sister, those would be considered hers and not part of the administration proceeding.
My sense is this attorney is siding with your sister otherwise he would've suggested that the 2 of you serve as co-administrators. If you are the only 2 surviving children, this would make the administration much smoother.
At this point your choices are to sign the paper or appear in court and oppose her appointment and ask that you be appointed. Sometimes, if there is too much animosity, the court will try not to appoint either of you; however, the next of kin still have the statutory right to act as administrator.
Whoever is appointed administrator will have the job of managing the affairs or your father's estate including pursuing the lawsuit. They will also have to make sure all assets improperly valued, any taxes are paid and the property is distributed pursuant to the law.
I don't see any way you can handle this without an attorney.
5 lawyers agree
A Waiver and Consent does not effect your right to a share of your father's estate. Rather, by executing the form your are telling the court that you consent to your sister being appointed administrator of the estate and that you have given up your right to act as administrator. That being said, you are not required to sign the form nor is the form required for your sister to proceed with her petition to be appointed administrator. If you refuse to sign the, the court will issue a citation which will be served upon you. The citation will set forth a date by which you must object to her appointment. If no one objects, she will likely be appointed.
That being said, someone must be appointed as administrator. Only an administrator has legal authority to act on behalf of the estate. If you do not want your sister to act, you may seek to be appointed. However, I urge you to retain an attorney to assist you with this matter as soon as possible.
This answer does not constitute legal advice and no attorney client relationship has been formed. Before choosing a course of action, it is always advisable to seek the advice of an attorney in your area.
Estate Planning Attorney
The document you are describing seems to be a waiver of your right to serve as an administrator not a waiver of your share of the estate. Accordingly you can sign it thereby allowing your sister to take on the duties of administrator (she will be entitled to a fee for this) or you can refuse to sign which will force the attorney to get a Court hearing date, serve you with notice of that date, and then a hearing will be held on this issue. At that point if you wish to oppose your sister's appointment you will need an attorney so if you are not willing or able to retain one you should factor that into your decision.
I do not agree that a co-administration is a wise alternative. From the limited information in your post it does not seem that you and your sister get along well enough for you to work closely together to complete the administration of the estate.
Keep in mind that if you oppose your sister's appointment there is the possibility that the Court will appoint an independent administrator that could significantly increase the administrative costs and reduce what you would otherwise receive.
Lastly, be honest with yourself as to your willingness to take on the burden of being the administrator. This matter apparently sat around with no one taking any action for over a year until your sister took the current action. If you conclude that you'd rather your sister be accountable as administrator than having to do the legwork yourself make sure the waiver does not waive bond as it seems you will be more comfortable knowing that a surety bond is in place to guarantee your sister's performance.
I strongly encourage you to retain counsel in any event to help ensure that your interests are protected.
Very truly yours,
P.S. — If you found this answer helpful, please click the “Mark as good answer” button below.
Law Office of Edward J. Smeltzer II
180B Tices Lane, Suite 103
East Brunswick, NJ 08816
Phone: 732-246-3131 Fax: 866-824-4779
This answer was prepared for educational purposes only. By using this site you understand and agree that there is no attorney client relationship or confidentiality between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction and with whom you have an attorney client relationship. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question or omitted from the question.
Elder Law Attorney
You do not have to sign. You also can apply to the Court to be administrator. The court will then have to make a decision. If you do not sign the Waiver and Consent, you will be served with a citation directing you to go to Court to show why your sister should not be appointed. If you do not want to apply to be the administrator, you ashould be ready to propose another suitable person for the job, or at least show why your sister is not suitable. You should get legal counsel.
Unless specifically stated otherwise, this communication shall not be deemed to be legal or tax advice, and no attorney-client relationship shall be deemed to have been created.
3 lawyers agree
Estate Planning Attorney
I am a NY lawyer. As my colleagues have advised you, the document is called a waiver and consent. You are not required to sign it. I agree with a comment that was previously stated. While I am always a believer in family working together, if your sister wanted to do that, she would have instructed her lawyer to prepare the petition for both signatures. If you do not want her to be the sole administrator, then do not sign. File a cross petition. The ccourt (and the lawyers) will usually settle for co-administrators - based on the facts you have presented. Since a petition has been filed, you will be filing a cross petition and settle for co-administrators. My guess is that your sister has been in touch with the lawyer who handled the case and wants to continue to handle the case, as administrator.
Sharon Siegel, Esq.
1 lawyer agrees