What is a waiver of notice?
Generally speaking, a waiver of notice is a legal document that waives an individual’s right to formal notification. The purpose of a waiver of notice is usually to allow legal proceedings to commence unencumbered by frequent notices, allowing the proceedings to be more timely and efficient. Waiver of notice documents are commonly used when probating a will, or in corporate settings when a board of directors needs to hold emergency meetings.
How does a waiver of notice relate to probate of a will?
When a probate court is dealing with wills, trusts, and estates, the law requires the interested parties to the proceedings (the beneficiaries) receive adequate notice. The purpose of adequate notice laws is to ensure interested parties are aware of the process and have the opportunity to both attend and participate in an initial hearing. While this is important, scheduling a hearing requires formal probate and can significantly lengthen the amount of time required to complete probate and distribute a decedent’s assets.
What does it mean when you sign a waiver of notice of probate of a will?
While your initial reaction to a waiver of notice may be guarded, the request is routine procedure for probate proceedings. In the interest of time and efficiency, beneficiaries are often asked to sign a waiver so that the probate court doesn’t need to schedule an initial hearing or provide ongoing notices of the proceedings.
When a beneficiary signs a waiver of notice they consent to the court-appointed personal representative (i.e. the executor), and they agree to forego the initial hearing. While signing the waiver of notice implicitly affirms the will’s validity, it doesn’t surrender an interested party’s right to contest the will or the actions of the personal representative during probate.
Are there any potential downsides to signing a waiver of notice?
Signing a waiver of notice may be standard practice, but it should still be thoughtfully considered. While it speeds up the probate process, you do run the risk of not being notified of important parts of the proceedings. Signing the waiver also initiates a statute of limitations, giving you only four months to contest the will or the appointed personal representative. If you believe the will is invalid or if you object to the personal representative, you should consult with an attorney before signing a waiver of notice.
What happens if you don’t sign the waiver?
If you don’t sign the waiver of notice, the probate court will schedule an initial hearing to assess the validity of the will and the appointment of the personal representative. If you don’t sign the waiver after the hearing, a probate judge will need to supervise the probate proceedings, approve important actions of the personal representative, and notify you throughout the process. While every case is different, formal supervised probate can easily take up to a year or longer. In contrast, when all interested parties sign a waiver of notice and there are no contests or objections, informal probate can wrap up in about 4 – 6 months.
How to contest a will
Successfully contesting a will isn’t easy. Dissatisfied beneficiaries can’t just object to a will because they don’t like it—they’ll need to prove that aspects (or the entirety) of a will are invalid. There are six conditions under which a will can be considered invalid:
- The testator was not an adult when the will was drafted – this is fairly simple to prove, as 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 entire will.
- The will was drafted under undue influence – for obvious reasons, 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 most recently signed version of an individual’s last will and testament trumps any previous versions.
- The will is not properly signed and dated – in most cases, the testator needs to physically sign and date their will. In the state of Arizona, a testator who is physically unable to sign their own will can ask a proxy to sign on their behalf (ARS 14-2502). However, 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 to be witnessed. 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 bequeathed by will. If there are any instructions regarding these assets in a will, the contractual beneficiary will always trump the beneficiary listed in the will.
How to object to a personal representative
If you have evidence that the personal representative is not qualified to manage the estate, you can appear at the initial hearing and argue your case against their appointment. Once the probate judge appoints a personal representative, you can file a complaint against the personal representative if they are remiss in their responsibilities or if you have evidence of fraudulent activity. The court will demand an accounting of their actions, and if your claims are correct, the court will dismiss 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 special administrator.
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. However, the state of Arizona deems no-contest clauses unenforceable when the beneficiary has probably cause to object or contest the will (ARS 14-2517)