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When Should I File A Probate Caveat? | Illinois Probate Explained

Updated on
November 12, 2020
Article written by
Attorney Kevin O'Flaherty

In this article, we explain when it is appropriate to file a probate caveat and answer the following questions:


  • What is a probate caveat?
  • Who can file a probate caveat?
  • When is it appropriate to file a probate caveat?
  • How can a probate caveat be prevented?


When someone dies their estate enters probate. What happens during the probate process depends heavily on what estate planning the individual did before dying. Many will have set up a will or trust, which is used to administer the decedent’s estate. The heirs, legatees, or beneficiaries will gather at the appropriate location, and the legal representative assigned with managing the decedent’s probate estate will begin. However, having a signed legal document doesn’t guarantee that the probate process will proceed without issue. The decedent’s spouse, beneficiaries, or anyone else who feels they were unjustly left out of the will, can voice their concern during the probate process. Furthermore, if someone feels the will was forcibly signed, the decedent didn’t have the mental capacity to sign the will, or the court suggests the will may have been tampered with, they can halt the probate process by filing a probate caveat.


What Is A Probate Caveat?


A probate caveat is a legal notice that can be filed to halt the probate process. It must be filed with the court before the probate process begins. If the court accepts the probate caveat it will halt the probate process and prevent the administrator or executor from dispersing the estate assets of the deceased person. The probate caveat should contain a description of the reasoning behind filing the document, and if that reason is legitimate, the discrepancy must be resolved before the probate process can continue.


Who Can File A Probate Caveat?


Anyone who has a legal interest in the estate can file the probate caveat notice in court. This could include, legatees, heirs, beneficiaries, spouses, and creditors. The individual filing the probate caveat is called the caveator.


When Is It Appropriate To File A Probate Caveat?


If there appears to be any inconsistencies, irregularities, questions about fraudulent activity, or any other significant objection from an interested party—real or perceived—then filing a probate caveat might be appropriate.

Once filed, a hearing will be set where a judge will ascertain the validity of the caveator’s claim. If the judge rules that the probate caveat is legitimate, then the probate process will be halted and the claim will be litigated in court. Some examples of caveator claims include:


  • The caveator feels the will was created under duress;
  • The caveator believes that another will exists;
  • The caveator believes that the decedent lacked the mental capacity to execute the will;
  • There is reason to believe the will was forged and not the original creation of the decedent;
  • Someone was left out of the will who should have been included;
  • The decedent did not sign off on the will; or
  • The will was created and/or signed due to coercion


These are just a few examples, but the bottom line is any act or omission that affects an interested party could potentially turn into a probate caveat.


If the court rules in favor of the probate caveat, then probate of the decedent’s estate is canceled until the issue is resolved. The reason for the probate caveat usually determines the solution. The will may be deemed null and avoid, forcing the estate to be administered via intestate laws. Or, an excluded heir could be added to those receiving a share of the estate. If the evidence doesn’t support the caveator’s claim, then the probate process continues.


How Can A Probate Caveat Be Prevented?


Adding a clause to the will stating that any named beneficiaries that object to the terms receive nothing, is one way to prevent a probate caveat. However, this only prevents named beneficiaries, not all interested parties. Furthermore, if a named beneficiary has evidence that the will is forged, was created under duress, or fraudulent in some other manner the probate would likely still be canceled and the will rendered null and void.


The best way to prevent a probate caveat is to make sure your will is constructed correctly. Consulting a qualified estate planning attorney ensures that your assets will be safely and correctly administered upon your demise and that your estate will move smoothly through probate.


When Should I File A Probate Caveat? | Illinois Probate Explained
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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