Waiver of Notice of Probate: To Sign or Not to Sign?
About Waiver of Notice of Probate Forms
Charities named as beneficiaries in a will frequently receive, early in the administration process, a form called “Waiver of Notice of Probate and Appointment of Personal Representative” (Waiver). These forms are pretty routine and meant to accelerate the probate case. Most charities sign them routinely, and maybe even blindly. There is little reported litigation on Waivers of Notice of Probate, which suggests that they are serving their purpose. To be frank, signing a Waiver of Notice of Probate is a good idea, most of the time. Simplifying the probate process can lead to earlier (and sometimes larger) payments to beneficiaries.
What are the downsides to signing Waivers? Honestly, not too many. The three effects that charities usually worry about are these:
- A Waiver of Notice of Probate starts the statute of limitations on objecting to the probate of the will;
- A Waiver of Notice of Probate starts the statute of limitations on objecting to the personal representative; and
- A Waiver of Notice of Probate is usually a harbinger of “unsupervised” probate.
For a given estate, if your charity has any concerns about the listed issues, it is prudent to think once, twice, and even three times about signing a Waiver of Notice of Probate. In fact, these are issues that should always be addressed when you learn of a new estate. There are five questions, each of which gets a simple “yes” or “no” answer. The answers will help you decide whether to sign a Waiver.
Have We Seen The Will and Do We Know Who Is Going To Be The Personal Representative?
We see cases in which a charity is asked to bless a will that it has never seen. All of the standard “waiver of notice” forms presuppose that the will has been provided to the beneficiary and that the proposed personal representative has been identified. Signing a waiver is a statement that based on its current knowledge, the charity has no objection to the will or the PR. No organization should make that representation without some evidence.
Do We Have A Reason to Object To The Will?
A charity that has received notice has been named in the will. That is a good thing, so why object? The most common reason for objection would be that the charity has knowledge of a different or later will. This “knowledge” could take various forms. Perhaps the decedent furnished a copy of the will to the charity for its files, or mentioned the existence of the document to a gift planner. If the alternate will provides a greater benefit to the charity, it would naturally wish to proffer any information it has. (If the alternate will gives less to the charity, disclosure may also be legally and/or morally required.)
There is another reason to “check the files” for alternate wills. If a later will was fraudulently concealed, for example, by a personal representative, a charity will have more chance to recover the lost legacy if it can truthfully say that there was no way it could have known about the missing document. See, e.g., Father Flanagan’s Boys Home v. Donlon, 449 F.Supp.3d 739 (S.D. Ohio 2020) (charity that could not have known about concealed testamentary gift allowed to seek recovery almost two decades later). Under normal circumstances, execution of a waiver of notice of probate will be binding. See, e.g., Cline v. Cline, 2007 Ohio 1391 (testator’s son signed waiver of notice of probate, which barred his later objection to the will).
Is The Language of the Will Troubling?
Bequest language can be troubling if there is an inaccuracy or ambiguity that could lead to an adverse outcome for your charity. For example, sometimes a charity is improperly described, raising possible doubt about its entitlement. Your organization’s strategy for dealing with this situation may depend upon the strength of its relationship with the decedent. Can we show she was a long-time donor? Do we have any evidence of testamentary intent?
Inaccurate naming of charities is a recurring problem in bequests. Many organizations rightly place a great deal of emphasis on encouraging donors to review their estate plans to be sure that “ABC Charity” is not mistakenly called “BCA Charity.” Sometimes the addition of other identifiers, such as EIN numbers, can be useful.
Occasionally, there will be an obvious error in the will. For example, suppose the residuary clause reads as follows:
33 1/3% to Charity A
33 1/3% to Charity B
3 1/33% to Charity C
If your charity happens to be Charity C, it is wise to confirm that the PR sees the matter as a typographical error that will be overlooked. Unfortunately, some PRs will be rigid to the point of inflexibility. That leads to the next question.
Are We Nervous About The Personal Representative?
Only rarely will an organization have reason to object to a particular personal representative. Sometimes, it will be a difficult family member who has already tried to interfere with their now-deceased relative’s relationship with one or more charities. Other times, “opposition research” can turn up interesting facts about a potential PR.
For example, a few years ago, one of our clients was a beneficiary in a case where the executor – the decedent’s nephew – announced at the outset a tortured reading of the will to benefit one charity at the expense of our client. A little internet homework revealed that the nephew was a close friend of an executive at the favored charity. Rather than oppose the appointment, our client simply revealed what it had discovered and indicated its intention to see a supervised administration of the estate. The dispute was resolved quickly, and in a manner fair to both organizations.
Would We Just Prefer Close Court Supervision of This Case?
Currently, supervised probate is certainly the exception. Although the Uniform Probate Code and most state laws permit a beneficiary to petition for such a procedure, it is not something that should be considered absent compelling circumstances – suspicions about the competence or partiality of the PR, concerns about the amount and types of probate assets, recognition of significant inconsistencies in the will, etc.
Generally speaking, unless a charity has a very significant stake in the outcome of a probate, it will not want to petition for supervised probate.
Waiver of Notice of Probate Takeaways
So, where are we now? You’ve received the Waiver of Notice of Probate that we talked about at the beginning. If your organization can answer “no” to each of the five questions – and it usually will – the chances are that signing the Waiver of Notice of Probate is the smart thing to do. If you’ve answered “yes” to one or more questions, then it’s time to dig a little deeper and confer with colleagues, counsel, or both to decide what is best for your charity.