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Saturday, January 13, 2018

A caveat was filed and now the estate is at a standstill. What can an executor do?

What happens when someone files a caveat against an estate, brings things to a screeching halt, then does nothing about it? As an executor, you do have options.

"My mom passed away in Sep 2016. I am the executor (son).I started the process with the lawyers to probate the Estate of my mom but the two sisters had put a dispute to stop the process. Two years is coming up in Sept 2018. What can I do to put a closure to this matter?"

You haven't said how your sisters "put a dispute to stop the process" but the usual method is by filing a caveat. I'll assume that's the case here. A caveat is a simple, one-page document that is filed at the court by a party who objects to the application for probate going ahead. The caveat doesn't contain a lot of information and the party who files it is not required to explain why they are filing it.

A caveat is not designed to stop things forever. Its purpose is to ensure that someone with a real issue has notice of what's happening so that person can participate and have a day in court with their issue. It is supposed to ensure that people who believe that a will is fraudulent or that the wrong person is applying as executor or one of many other problems has the opportunity to bring that information to the court.

The usual procedure when someone files a caveat against an estate is that the executor contacts them or their lawyer if they have one, and finds out about their issue with the estate.

If the person who filed the caveat does nothing, it expires after six months. It can be extended.

Assuming that the person who filed the caveat has described to you the nature of their issue, your next step might be to negotiate or mediate with them to try to resolve it. This will depend on what the issue is, of course.

If negotiation is not appropriate or doesn't work, you have another option. You may apply to the court to expunge the caveat. Basically this means that you want the judge to tell your sisters to start a court action on their issue by a certain time or the court is going to remove their caveat so you can get on with the estate.  The court isn't going to allow someone to hold the estate hostage for their own amusement or because they simply don't like you. At the risk of sounding cynical, I know that sometimes people really do throw caveats around just to upset others.

Check to see whether there is a caveat filed, or ask the lawyer to do this. If it turns out that your sisters have no real issue and are just being obstructive, they will most likely be ordered by the court to pay your legal fees. If there is a real issue and the caveat has been filed for a legitimate reason, your legal fees for anything to do with the caveat should be paid out of the estate. If this means that the estate is eaten up and the beneficiaries don't get anything, so be it.


4 comments:

  1. Lynne

    Once Probate is granted, can someone (e.g. an adult offspring who was not a beneficiary) still dispute the will? What form would that take?

    What would be the Executor's liability if they had already distributed assets (subsequent to granting of Probate)?

    Thanks

    ReplyDelete
    Replies
    1. The answers here depend on a lot of factors.

      I will assume that probate was granted in the usual, informal way without a trial. The vast majority of probates are done that way. If that is the case, then it is possible to dispute the will in certain circumstances. The fact of probate alone is not always enough to head off a lawsuit if there is a legitimate legal issue.

      Because the probate has already been granted, the question of why the person who wants to sue did not object earlier will arise. There has to be a good reason why there was no objection in a timely manner.

      I haven't done research on your specific question on executor's liability, but from my general knowledge of estate law I would find it surprising if there was any liability on the executor. If the executor had probate and had no idea there was an issue percolating, he or she would have done nothing wrong in distributing the estate.

      Lynne

      Delete
  2. The caveat doesn't contain a lot of information and the party who files it is not required to explain why they are filing it.[LYNNE]

    Lynne, this does not make sense to me. Why does the Court allow 'people' to play games at the expense of everyone. We keep hearing the Courts are over burdened. How does this help? Webeye

    ReplyDelete
    Replies
    1. It helps because it is the only way that someone with a genuine issue can find out what's going on. As you know from personal experience, people involved in estates don't always behave well. If nobody will say what's going on and they just go ahead in court without anyone having the chance to object, the courts will be even more burdened by appeals and applications to overturn orders.

      Lynne

      Delete

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