When a close relative dies, and someone other than you has been named in the will as the executor of the estate (or applies to the court to administer the estate, if there was no will), you will receive a Waiver and Consent document and you’ll be asked to sign and return it.
This is usually the first contact that you will have with the legal mechanics of the estate, and if you’re like most people, you won’t really know what to do or what the implications are.
The essential thing to understand is that even if a person is named as the executor under the will, that’s only a nomination. He or she only becomes the executor after the court reviews the will and approves the appointment. The law is designed to let close relatives, like you, to have their day in court if you feel the will is not valid, or if you feel that the nominated executor is not trustworthy.
A Waiver and Consent is a waiver of your right to that day in court, and your consent to that person becoming the executor. So, it has really big consequences, which you should take very seriously.
If the nominated executor is your brother whom you know to be dishonest, or your sister who has a record of criminality or mental illness, or someone who has made threats of to harm you or has talked about making off with the deceased person’s property — or if you think that the will was written under duress, or signed by someone who had severe dementia and really didn’t know what they were doing — then you should absolutely NOT sign the Waiver and Consent.
If you sign the Waiver and Consent, you are letting go of all your rights to prevent the will from being approved and all your rights to prevent the nominated executor from taking control. You do still have rights that you can exercise later, but the most powerful and important rights are those that you have at the outset, which are extinguished if you sign the Waiver and Consent.
When you receive the Waiver and Consent, that is the time to engage an attorney for yourself. You might still be the thick of grieving, or burdened with other things in your life, and the legal matters might be the last thing you want to deal with. But if you sign the document without getting legal advice, you may regret it very deeply later on. Our office is full of cases just like that.
The Waiver and Consent essentially asks you to “speak now or forever hold your peace” about the will and the executor. If you have something to say about the will or the executor, then it’s important to speak up at this juncture, and not let the opportunity pass.