Caveat and probate
Posted on 9th October 2020 at 15:30
Did you know that a caveat can be used to prevent a grant of probate?
What could this mean for your friends and family?
What is a caveat?
A caveat is used to ask someone to suspend an action. In the case of your Will, it could be used to stop your executors obtaining a grant of probate. If you don’t have a Will, it could be used to prevent your family obtaining letters of administration.
When would someone use a probate caveat?
A caveat might be used if someone was concerned about the validity of your Will. A caveat prevents a grant of representation being issued while their concerns were investigated.
This allows time for your beneficiaries and executors to understand their concerns and to take legal advice if necessary. This might include asking the Will writer who prepared your Will for more information, obtaining medical records or taking evidence from witnesses.
If your family members felt that your executor wasn’t suitable to carry out the role, a caveat could also be used to prevent them from obtaining a grant of representation.
How is a caveat made?
A caveat can be obtained by a straightforward application to your local district probate registry. Anyone applying for a caveat must be 18 or over and live in England and Wales.
An application costs £3 and can be made online or with a paper form (PA8A). To make an application the full name, date of death and last known address of the person who has died will be needed.
What happens when the caveat is made?
When someone applies for a grant of representation they will be told that a caveat has been entered. Normally, this will lead to a delay in probate while the person who applied for the caveat makes enquiries.
If a grant is needed urgently to protect or preserve assets, such as a property sale or preventing interest building up in an equity release scheme, then a limited grant can allow your executors to collect your assets and pay liabilities but they won’t be able to pass anything on to your beneficiaries.
How long does a caveat last?
A caveat will remain in place for six months but it can then be renewed. If the caveat isn’t renewed, your executors can apply for a grant of probate for your estate.
If the person who entered the caveat is later satisfied that everything is in order with your Will, a simple letter to the probate registry requesting its withdrawal can allow your estate to be administered.
Can a probate caveat be challenged?
Your executors could decide that the caveat isn’t reasonable, either immediately or after they have made some investigations. They could then issue a formal document to remove it, known as a warning,. Once served with the warning, the person who made the caveat has 14 days to submit their own document to keep the caveat in place. This would make the caveat permanent and then it can only be removed with the consent of both parties or by a court order.
If the person who entered the caveat doesn’t respond in time it can be removed by the probate registry so that the grant application can go ahead.
Although this process doesn’t cost anything, legal advice and any later court fees must be paid for.
Reasonable financial provision
A caveat probably isn’t the best option for someone who thinks they should receive ongoing support from your estate to obtain what is known as ‘reasonable financial provision’. This type of claim should be brought within six months, once the grant of representation has been issued. Someone in this position can apply to be notified when the grant is issued so that they make their application for support in time.
Please get in touch if you would like to know more.
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