If you are an interested person in a Florida probate case, you may be concerned about how long the probate administration is going to take. A summary administration can take up to several months, depending on the number of creditors. A formal administration can take up to six months or more, depending on the complexity of the case and if there are any adversary proceedings involved. One of the methods probate attorneys can use to speed up the resolution of a probate case is the use of waivers. Please note that the contents of this post are not legal advice. If you are requested to sign a waiver, you should consult with an attorney.
A waiver is a document that a person can file in a probate case by an interested person that waives any objection to a petition or other document filed in the case. A waiver typically states that the person who signed the waiver document agrees not to file any objection to the petition or other document filed in the probate case. The waiver may also state other items, such as the interested person will not try to be the personal representative, or that the interested person does not want an accounting in the probate case. Once the interested person has filed a waiver, that person typically cannot file any objection to the document identified in the waiver.
Typically a waiver can be requested from an interested person by the attorney for a petitioner or personal representative in any situation where there is a document filed in the Florida probate case that affects an interested person’s position or rights in the probate case. While there are many documents and actions that can be taken in a probate case, there are several common documents when waivers are often requested.
The first document is the petition for administration, which is the beginning of a formal probate administration . Waivers to the petition for formal administration and other documents are allowed by section 731.302, Florida Statutes . Under section 731.302, Florida Statutes, after a petition for administration is filed, an interested person “may waive, to the extent of that person’s interest or the interest which that person represents, subject to the provisions of ss. 731.303 and 733.604 , any right or notice of the filing of any document, exhibit, or schedule required to be filed and may consent to any action or proceeding which may be required or permitted by this code.” In the case of a petition for administration, the interested person filing the waiver will likely waive that person’s ability to be personal representative (if applicable), any objection to the will that is probated (if there is a will), and receipt of notice of the petition for administration, and consents to the entry of the order admitting the will to probate and appointing personal representative. These are the most common elements of this sort of waiver to petition for administration, but there may be others depending on the specifics of the case.
The petition for summary administration is another document when a waiver to interested persons is typically requested. The type of waiver typically seen in a summary administration is a joinder, waiver, and consent. A joinder waiver and consent is authorized under Florida Probate Rule 5.530 . A joinder, waiver, and consent typically states that the interested person signing the waiver joins in the petition for summary administration, waives any objection that person has to the petition, and consents to the entry of an order of summary administration in the form that is requested by the petition. After filing joinder, waiver, and consent forms from all interested persons, typically beneficiaries, the court will proceed to issue the order of summary administration in the case.
At the end of a formal administration, after the personal representative has fully administered the estate, the personal representative will file a petition for discharge .The petition for discharge, under section 733.901, Florida Statutes , ends the personal representative’s responsibilities and powers for the probate estate and essentially ends the administration. However, prior to discharge, a personal representative is required to file a final accounting with the Florida probate court pursuant to Florida Probate Rule 5.400 . In a formal administration, a personal representative may request that the beneficiaries and other interested persons sign a waiver of accounting, receipt, and consent to discharge in order to more expeditiously end the probate case. If the remaining interested persons sign the waiver, then it may spare the estate some additional expense in requiring the personal representative to prepare an accounting.
If you receive a request for a waiver from a petitioner or personal representative in a Florida probate case, you should carefully examine the language of the waiver and the documents that were served with it. At this point, it is recommended that you consult with your own probate attorney if you have any concern about what rights in the probate case you are waiving by signing the waiver. It is always highly recommended that you talk with an attorney if you have any doubt about whether signing a waiver is a good decision.
In some cases, signing a waiver can have a positive effect on the probate administration. If you have listed as receiving all of the assets that you are supposed to receive and you trust the person proposed to be personal representative, it may make sense to sign the waiver to the petition for administration. Most times, even if you do not sign the waiver, the petitioner or personal representative may be able to proceed without your consent as long as you are provided proper notice and no objections are filed. Therefore, unless you file an objection or otherwise oppose the relief requested in the case, the petitioner or personal representative will likely get what he or she is asking for. In any case, it is important that you consult with a Florida probate attorney about whether signing a waiver if a good decision if you have any doubt about its effect.
If you need to open a Florida probate case or if you have concerns about a waiver that you are asked to sign in a Florida probate case, contact us today to schedule a free consultation over the phone or in person. During our consultation, one of our attorneys will talk with you about your situation and will explain the probate process to you. If you need to take action, our attorneys are knowledgeable about probate litigation and are experienced in enforcing the rights of beneficiaries and interested persons in Florida probate cases. We look forward to talking with you.
