A loved one has passed away and after a few weeks you receive a package from a probate attorney’s office. Inside the package are several official looking documents along with a cover letter asking that you sign and return a Consent to the enclosed Petition for Administration. Should you sign the Consent or not? Should you file an Objection?
In order to discuss this, we begin by explaining what it is that you are being asked. The Petition for Administration is the document filed in a Florida probate court seeking to open the estate of a deceased person. The Petition seeks a couple of things. First, it seeks to have a Will–if there is one–admitted to probate. If there is no Will, then it seeks to open an intestate estate. Second, the Petition seeks to have the Court appoint a Personal Representative (known in some other states as an “Executor”). This is the person who will be in charge of handling the probate estate.
When a probate attorney asks that you sign a Consent to the Petition, he or she is asking that you agree that the relief requested in the Petition should be granted. This would mean that you are agreeing to the Will being admitted to probate (or alternatively, that you agree there is no Will). The Consent also expresses your agreement to the person filing the Petition being appointed as Personal Representative. The Consent does not waive your rights as a beneficiary–assuming that you are one.
So in deciding whether to sign the Consent, you must consider whether the relief requested in the Petition is objectionable. In other words, do you agree that the Will is valid and should be accepted by the Probate Court? If there is no Will, do you agree that one does not exist?
In addition, is the person seeking to be appointed as Personal Representative qualified to serve in that capacity? Under Florida law, Section 733.303, Fla. Stat., certain persons do not qualify–for example, if they are a convicted felon or if they are not a Florida resident and are not related by blood or marriage. Another consideration is whether the requesting person has priority to be appointed? If there is a Will, the person designated in the Will usually has priority. If there is no Will, then Florida law sets forth a “pecking order” for who has priority. For example, a spouse usually has first priority.
Ultimately, if you do not have reason to oppose the relief requested in the Petition, then signing the Consent is acceptable–in fact, it is preferable since it will speed things along and may save the estate some expense.
If you do not sign the Consent, what happens? Usually, you will be served with the Petition via Formal Notice (by certified mail). Once you are served, you will have twenty days to file an Objection to the Petition. Ultimately, the court will grant the Petition if you don’t file an Objection. In an Objection, you would state the legal basis on which you do not agree with the Petition. If an Objection is filed, the probate court will likely have a hearing to give you a chance to establish the basis for your Objection.
Ultimately, deciding whether to sign the Consent or to file an Objection may involve some legal issues. As a result, it is usually advisable to consult a probate attorney before making the decision. The cost of this type of consultation is usually not substantial but doing so can assist you in assessing the “pros and cons” of giving the Consent or filing an Objection.