What is a Waiver of Right to Appointment as Personal Representative?

Should you sign a Waiver of Right to Appointment as Personal Representative?

If your loved one died and left money or property in their personal name, then a probate process may be needed. Part of the probate process is to appoint a Personal Representative. Another name for Personal Representative is Executor. If you are unsure of what is a Waiver of Right to Appointment as Personal Representative, give us a call. Consult with a qualified attorney before signing any documents or waiving your rights.

If more than one person qualifies to become Personal Representative, then there could be a fight in court. To avoid such a fight, one person could try to get the others to waive their rights to become Personal Representative. That helps make sure the proceedings go smoothly.

What is a Waiver of Notice?

A waiver of notice is a legal document that waives an individual’s right to something. In this case, it is waiving the right to be appointed Personal Representative.

What is the Purpose of a Waiver of Right to Appointment as Personal Representative?

The purpose of a Waiver of Right to Appointment is to allow one person to begin administering the estate. Without a Personal Representative, estate assets go unmanaged. Think of the assets that were in the deceased person’s name. For example, was there a house or business that is still in the deceased person’s name? How about a bank account or investment account? If those assets did not have a beneficiary or joint tenancy designation, then they need a probate.

But what if more than one person wants to become Personal Representative? Then they will need to ask the Probate Court to decide. That will most likely take months. Meanwhile, estate assets go unmanaged.

How Does a Waiver of Right to Appointment Relate to Probate of a Will?

Probating the will means that the court admits the will to probate. The English word “Probate” derives from the Latin verbs probo and probare. Those Latin words means to try, test, prove, and examine. The process itself means that the Will must be proved before the court.

But, what if the Will names someone to become Personal Representative? If the court accepts the Will, does that give authority to the named Personal Representative?

The answer is no. The court must separately appoint a Personal Representative. The person named in the Will to become Personal Representative has priority. But the court is not required to appoint the person nominated in the will.

What Does it Mean When You Sign a Waiver of Right to Appointment as Personal Representative?

You might be suspicious of signing a Waiver of Right to Appointment. That’s understandable. In this case, waiving your rights means you won’t be in control. Someone else will be in control. But you can still protect yourself. So keep reading.

What Can Happen If You Sign a Waiver of Right to Appointment as Personal Representative?

The answer to this depends on what other protections are in place. For example, did you insist on the Personal Representative getting a bond? Will you be getting an Inventory and Appraisement?

On one hand, the request is a routine procedure for probate proceedings. But, if the person who becomes Personal Representative might mismanage things. They could take everything and leave the country.

Can You Protect Yourself If You Sign Waiver of Right to Appointment as Personal Representative?

The short answer is yes. Former President Ronald Reagan used to say, “Trust, but verify.” In this case, to protect your interests, you should trust, verify, AND protect yourself. Hopefully you can “trust” once you get the following two pieces in place.

Here’s how you can “verify” that the Personal Representative is protecting your interests. Hire a probate law firm (like us) to make sure things are being done properly. Here are some deadlines that the law firm can help you track:

  1. An Inventory and Appraisement is due within 90 days after the Personal Representative gets appointed. A.R.S. Section 14-3706.
  2. The Personal Representative should publish a Notice to Creditors shortly after appointment. A.R.S. Section 14-3801.
  3. The Personal Representative has a duty to settle and distribute the estate of the decedent as expeditiously and efficiently as is consistent with the best interests of the estateA.R.S. Section 14-3703.

You can also require the Personal Representative to post a bond. A bond is an insurance policy. It protects the estate from the Personal Representative stealing or mismanaging the assets.

There are other ways to protect and verify that your interests in the estate are safe. A good probate law firm can help you through this process. (We would love to help you!)

Are There Any Potential Downsides to Signing a Waiver of Notice?

Signing a waiver of right to appointment is a standard practice. But it should still be thoughtfully considered. While it speeds up the probate process, you do run the risk of the Personal Representative doing something that you don’t agree with.

You can revoke your waiver at any time. Once the court appoints a Personal Representative, it is more difficult to remove that person. Removing the Personal Representative requires petitioning the court. You have the burden of proving the reasons for removing the Personal Representative. The process can take months. Meanwhile, you will need to pay for your own lawyer. The Personal Representative, however, can use the estate’s money to pay for their lawyer.

What Happens If You Don’t Sign the Waiver?

If you don’t sign the waiver of right to appointment, the person seeking appointment as Personal Representative will need to file a petition with the court. The probate court will schedule an initial hearing. If you don’t object at that hearing, the person will probably get appointed. If you object, the court will schedule later hearings.

During this time, you can file your own petition asking that the court appoint you or someone else.

How to Contest a Will

Successfully contesting a will isn’t easy. Just because you don’t like what the will says doesn’t mean you have a right to contest it. You will need to prove that aspects (or the entirety) of a will are invalid. There are six conditions under which a court can determine that a will is invalid:

  • The testator was not an adult when he or she signed the will. The testator needs to be 18 or older to sign a will. (ARS 14-2501).
  • The testator was not of sound mind. Incapacitated individuals are not allowed to write a will. If the testator was unconscious or mentally unfit at the time of signing, the court may invalidate the will.
  • The will was signed under undue influence. People who are being manipulated or are under duress can’t write a valid will. The most common cases of undue influence involve individuals who manipulate and exploit the elderly.
  • The currently accepted will is not the most recent version. The will honor most recently signed version of an individual’s last will and testament.
  • The will is not properly signed and dated. In most cases, the testator needs to physically sign and date their will. In Arizona, a testator who is physically unable to sign their own will can ask a proxy to sign on their behalf (ARS 14-2502). But, if the will is handwritten (holographic), the signature needs to be in the testator’s handwriting.
  • The will is not properly witnessed. In the state of Arizona, two witnesses need to sign a typed will. But a holographic will that matches the testator’s handwriting doesn’t need witnesses. Some states do not allow beneficiaries to serve as witnesses to a will, but Arizona allows the practice (ARS 14-2505). A probate judge can summon a will’s witnesses to appear before the court to authenticate the will and testify that they witnessed the testator sign the will.
  • The will attempts to distribute assets that are not subject to probate. Assets that have a contractual beneficiary listed on the account cannot be distributed by will. If there are any instructions about these assets in a will, the contractual beneficiary will always trump the beneficiary listed in the will.

How to Object to a Personal Representative

Do you have evidence that the personal representative is not qualified to manage the estate? If so, you can appear at the initial hearing and argue your case against their appointment. After the personal representative get appointed, you can file a petition seeking to remove the personal representative. One basis for removing a personal representative might be that they did not fulfill their responsibilities. Another basis might be that they engaged in fraudulent activity. The court will demand an accounting of their actions. If your claims are correct, the court will remove them and appoint a new personal representative. If there aren’t any other qualified candidates amongst the decedent’s next-of-kin, the court can appoint a third-party.

If you have a question, give us a call at 602-443-4888.

A Word of Caution Regarding No-Contest Clauses

Many wills include a no-contest clause to prevent baseless objections to the will or to the actions of the executor. The wording may vary, but the idea is always the same—a beneficiary who contests the will stands to lose their inheritance. But, Arizona deems no-contest clauses unenforceable when the beneficiary has probable cause to object or contest the will. (ARS 14-2517)

Call us at 602-443-4888 to discuss your case today.

ABOUT THE AUTHOR

Founding attorney Paul Deloughery has been an attorney since 1998, became a Certified Family Wealth Advisor. He is also the founder of Sudden Wealth Protection Law.

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