You have options if a sibling will not sign probate documents. These options may look different depending on the circumstances, so it is important to consult an experienced probate attorney before you act. Consider contacting Beller Law, PL, to learn how our compassionate, knowledgeable team can put their decades of experience to work for you.
How Does Probate Work?
When someone dies, you pay certain outstanding debts and distribute their assets through probate. The process varies slightly depending on whether the person who died, the decedent, left a will, but the process is fundamentally similar.
Steps in the Probate Process
In Florida, you can go through formal or summary estate administration. Formal administration is for larger estates or estates that require specific actions before paying debts and distributing assets, while summary administration is for small estates and often moves faster. Also, Florida law requires that a formal administration have an attorney representing the estate administrator, while this is not a requirement for summary administration.
To begin estate administration, you bring the decedent’s death certificate and will, if they had one, to a probate court. If an attorney is involved, the attorney will do this at the appropriate time. It is then determined what the estate includes, what debts must be paid, and who gets what.
If the decedent left a will, you probate it. “Probate” has two common meanings: overall estate administration and the process of determining whether a will is valid. Context usually reveals which meaning applies.
Challenges During Estate Administration
At the start of a probate administration, all interested parties must be notified. Interested people are people who may be affected by the case, typically legal heirs and beneficiaries under current or previous wills, as well as certain creditors. Because a person’s children are usually high on the list of their legal heirs, they are typicallyinterested parties regardless of what the will says.
Interested parties may raise challenges related to the:
- Opening of the estate,
- Appointment of the estate’s personal representative (executor or administrator),
- Payment of a bond by the personal representative,
- Personal representative’s conduct,
- Identification of legal heirs,
- Sufficiency of notification,
- Filing of an inventory,
- Valuation of assets,
- Will’s validity or interpretation,
- Claims of creditors,
- Decision to use summary administration,
- Provision of a final accounting before distribution, or
- Fees paid to the personal representative or attorneys.
Most of these challenges must be made within a limited timeline, but some can occur months or years after the estate is closed.
What Is a Probate Waiver?
A probate waiver and consent is a document that an interested person may sign to waive the right to challenge certain aspects of the probate process.
Some examples of probate waivers or consents include:
- Waiver of Priority — Waiving your right to be appointed as personal representative;
- Consent to Appointment of Personal Representative — Agreeing to the court appointing a specific person as personal representative;
- Waiver of Notice — Waiving your right to receive notice about steps in the process;
- Waiver of Bond — Waiving your right to challenge the court’s decision related to paying bonds;
- Joinder Waiver and Consent — Waiving your right to challenge estate administration;
- Waiver Of Process and Consent To Probate — Waiving your right to challenge a will and consenting to its probate; and
- Waiver of Accounting, Receipt, and Consent to Discharge — Waiving your right to receive a final accounting before asset distribution and consenting to the court discharging the personal representative from their duties.
If you send or receive a probate waiver or consent, it should specify what rights you are waiving and the effect of that waiver.
What if a Sibling Will Not Sign a Probate Waiver or Consent to Probate?
Many outcomes are possible if your sibling refuses to sign a probate waiver or consent. These outcomes vary depending on the type of waiver, your sibling’s reason for refusing to sign, and what your sibling does if you move forward without a waiver. So, how should you respond to a sibling’s refusal to sign?
Discuss the Waiver with Your Sibling
It can be easy to assume a sibling is being unreasonable by refusing to sign a waiver. But they may have genuine concerns. Speaking with your sibling is typically the best place to start. Even if you think you know why they are refusing to sign, showing a willingness to listen to their concerns can go a long way.
Suggest that the sibling speak with your attorney, if one is involved in the process. Often having a better understanding of the legal process and the reason for the waiver can diffuse concerns and any distrust.
You may want to suggest they hire a lawyer for the conversation. Encouraging your sibling to find their own attorney may seem counterintuitive, but it can save time, money, and even your relationship. Their attorney can help them decide whether to sign. Because your sibling’s interests may conflict with yours, your lawyer typically cannot advise them on whether to sign.
Explore Potential Probate Contests
If conversation does not do the trick, explore what objections your sibling may have and related evidence you could offer. You will not create a complete case, but exploring the possibilities can help you decide the best next move.
Negotiate with Your Sibling
After you have explored possible routes the case may take, return to the negotiation table. You may negotiate through your lawyers, but you may want to attend mediation, a form of alternative dispute resolution that is less costly and time-intensive than court.
At mediation, a neutral third-party mediator leads a discussion between you and your sibling. Mediation offers a collaborative environment and the assistance of someone who can provide an outside perspective. Many people leave mediation surprised by how well the mediator helped them reach a solution that satisfied both parties’ wishes.
Present Your Claims to Court
If all else fails, you can contest probate issues in front of a judge. Your sibling has to clearly state what aspects of probate, if any, they are challenging. Sometimes, a sibling may fail to sign a waiver despite having no intent to challenge probate. While frustrating, this decision has minimal impact on the outcome of the case—with no objection, the court will generally rule in your favor.
Other times, you may have to respond to your sibling’s challenges by offering evidence to refute their claims. You will work with your attorney to prepare and present your case before the court.
Get Help Handling Probate Problems with Siblings
Navigating probate alone is difficult enough. Navigating probate alone when your sibling refuses to cooperate can lead to a longer timeline, increased costs and stress, and potentially result in your parent’s final wishes being ignored. If you need help responding to a sibling who is refusing to sign a waiver or consent to probate in Florida, contact Beller Law, PL.