Executors nominated in decedents’ wills often question why it is necessary to contact anyone not named in the will. Other people frequently ask, “Why does an attorney want me to sign a document and get my signature notarized when I don’t even know the decedent and I’m not getting anything under the will?” Sometimes they ask the question politely, but other times they say things like “this makes no sense,” and hang up the telephone or immediately throw the letter requesting cooperation in the trash. It then becomes awkward to try to explain why cooperation is important. Even lawyers who do not practice in Surrogate’s Court often do not understand why it is necessary in a probate proceeding to deal with people who are not named in a testator’s will.
The answer is that the probate process involves the extinguishment of intestate rights of individuals, who may be very distantly related to the decedent, in favor of testamentary dispositions set forth in a decedent’s will. To accomplish this extinguishment, the Surrogate’s Court must not only be satisfied with proof that a document signed by a decedent and presented by a petitioner is in fact a valid will but must also obtain jurisdiction over those persons whose intestate rights are to be cut off. This jurisdiction is normally obtained either by (1) a signed and acknowledged Waiver of Citation and Consent to the probate of a will, or (2) serving a citation on and setting a court date for the cited person to appear in court and state his or her position concerning the validity of the decedent’s will.
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