Written by attorney Sharon M. Siegel

Waiver and Consent to the Probate of a Will

A waiver and consent is a form used in all counties of the Surrogate's Court, State of New York. It is used in all types of Surrogate's Court proceedings. If you sign a waiver and consent, you are waiving your rights to file objections to the probate of a will (see my legal guide on objections to probate) and consenting to the petitioner being named as Executor.

Before you sign a waiver and consent, you should review the will being offered for probate and consider whether or not you want to object to the probate of the will. If you sign a waiver and consent, there are cases in which you can petition the court to have it revoked. However, this is very rarely granted and the standards are strict. So don't sign if you are on the fence. If you do not sign the waiver and consent, the petitioner will serve you with a Probate Citation. If you live in NY, the petitioner will serve you personally (through a process server). If you live outside of NY, service is by return receipt requested and if you live internationally, by international certified return receipt requested. You do not have to appear on the return date of the Citation or you can appear through a lawyer.

Only distributees (next of kin) have to file a Waiver and Consent becuase they have standing to object. However, it is never harmful to have all parties sign a Waiver and Consent. If all parties, distributees and non-distributees, sign a waiver and consent, the probate proceeding will likely go more quickly because the court will know that no one is objecting. Likewise, if there are distributees that you know will not sign a waiver and consent, the petitioner should get a citation issued immediately so that the probate process can begin.

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