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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.


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