When a person passes away, loved ones are often left with questions about assets, debts, and whether a probate is necessary. However, loved ones are not always the only people who may want to be made aware when a person (known as the “decedent”) passes. For instance, creditors (i.e., a person, financial institution, or other entity who is owed money) often want to be notified when a decedent passes away, as they may be owed money from the decedent’s estate.
So, what happens if you believe a probate case may be filed and you want to make sure you’re notified when it happens? Florida law offers a powerful but often overlooked tool: the Caveat.
A Caveat is not just a tool for creditors. There are plenty of reasons to seek advance notice of probate proceedings, whether to protect inheritance rights, raise concerns about a will, or simply stay informed. Understanding how caveats work can help you avoid being caught off guard or miss your opportunity to make a claim against a decedent’s estate.
Why You May Not Receive Immediate Notice of a Probate
Many people assume they will automatically be notified when a probate is filed, and while that is often the case, there is never a guarantee that all interested persons will be notified when a probate is filed. Potential heirs, beneficiaries under a prior Will, or individuals concerned about undue influence or fraud may not receive notice until after important steps have already taken place. In some cases, a personal representative may already be appointed before you even know a probate case exists. By then? Your options may be more limited.
What Is a Caveat Under Florida Law?
A Caveat is a document filed with the clerk of the probate court that alerts the court that you have an interest in the estate and want advance notice of certain probate actions. Under Section 731.110, Florida Statutes, once a Caveat is on file, the court generally cannot admit a will to probate or appoint a personal representative without first providing notice to the person who filed the caveat.
Benefits of Filing a Caveat
A Caveat provides early notice of the initiation of a probate proceeding. This means that, rather than learning about a probate case after it is already underway, the caveator (i.e., the person who files the Caveat) receive notice at the outset, when their rights and/or interests are easiest to protect.
Filing a caveat also allows time to review the Last Will and Testament (a “Will”) being offered for probate. If the document differs from a prior Will, unexpectedly excludes a person, or raises concerns about capacity or undue influence, early notice gives the caveator the opportunity to consult with an attorney and evaluate their options before it is too late.
Early notice of a probate proceeding also allows a caveator to get involved before a personal representative is appointed. For a caveator that may have an equal or higher preference in being appointed personal representatives themselves, this provides the caveator with the ability to object to the appointment or raise concerns before the court locks in those decisions (and before the personal representative assumes authority over an estate’s assets).
Filing a Caveat also can impose certain notices requirements. “If a caveat has been filed by an interested person other than a creditor, the court may not admit a will of the decedent to probate or appoint a personal representative until formal notice of the petition for administration has been served on the caveator or the caveator’s designated agent and the caveator has had the opportunity to participate in proceedings on the petition, as provided by the Florida Probate Rules.” Section 731.110(3), Florida Statutes.
In disputed estates, timing is often critical. A Caveat can prevent rushed court actions and provide an attorney with time to prepare an appropriate response. Even when no dispute arises, many people find peace of mind in knowing that they will not be left in the dark about probate proceedings involving someone close to them or assets they may have an interest in.
When Filing a Caveat Makes Sense
“Any interested person who is apprehensive that an estate, either testate or intestate, will be administered or that a will may be admitted to probate without that person’s knowledge may file a caveat with the court.” Section 731.110(1), Florida Statutes.
A Caveat may be appropriate when a person is elderly or seriously ill, and probate is likely to be filed soon after death. A Caveat may also be helpful if you believe a new Will may exist, if family conflict is likely, or if you were named in a prior Will and fear being excluded.
A Caveat can be filed before or after the death of the person for whom the estate will be, or is being, administered, so long as the caveator is an interested person who is not a creditor. The Caveat of a creditor may be filed only after the person’s death.
Limitations of a Caveat
A Caveat must be properly drafted and filed in the correct county to be effective. There are also specific requirements for a non-resident caveator. See Section 731.110(2), Florida Statutes.
Caveats also do not remain “active” forever. Pursuant to Section 731.110(4), Florida Statutes, a Caveat filed before the death of the person for whom the estate will be administered expires 2 years after filing. A new Caveat would then need to be filed after the initial Caveat’s expiration, or else the caveator of the original Caveat will not receive notice.
Additionally, while a Caveat is a powerful notice mechanism, it does not stop the probate or initiate any sort of objection regarding any aspect of the probate, such as the Will or the appointment of a personal representative. This means that merely filing a Caveat does not “do” anything in the probate proceeding, except for give the caveator notice of the initial filing of the probate.
Conclusion
If you want to be notified of a probate filing in Florida, a Caveat is one of the most effective tools available. It provides early awareness, thereby allowing a caveator time to act if concerns arise.
If you believe probate may be filed and want to stay informed, speaking with a Florida probate attorney about whether filing a caveat is appropriate can be a wise first step.