Wednesday February 15, 2023
What is a grant of probate?
A Grant of Probate is a grant obtained from the Probate Registry, providing the executors with the legal authority to administer the deceased’s estate in accordance with their will or intestacy.
The Grant of Probate enables the executors to deal with the deceased’s property, including selling or distributing the assets.
When applying for a Grant, the executors must provide a copy of the deceased’s last will and testament or confirm that the deceased died intestate. Once lodged and the Grant of Probate issued, the will provided is considered the last valid will executed by the deceased. It may therefore be beneficial, if you wish to bring a potential claim, to prevent the Grant of Probate being obtained.
There are many reasons someone might not want a Grant of Probate to be taken out, including a potential claim against the estate.
Preventing a Grant of Probate being obtained will provide additional time for a potential claimant to gather relevant information, setting out grounds for their claim, or negotiating with the personal representatives and other interested parties.
If you are concerned that the deceased’s will may be invalid, it may be appropriate to file a Caveat with the Probate Registry to prevent the executors obtaining a Grant of Probate. A Caveat may be used where there is any of the following types of claims:
Claims under the Inheritance (Provision for Family and Dependants) Act 1975 should not be protected by a Caveat. This is likely to be seen as an abuse of process by the Courts.
What does a Caveat do?
Once a Caveat is entered, the Probate Registry are unable to issue the Grant of Probate in favour of any applicant. This ensures that the estate assets are not administered or dealt with. If there is the potential for a claim, this will ensure that estate assets are protected. A Caveat will be in place for a period of six months and should be renewed at this point if necessary.
We suggest that you seek legal advice prior to applying for a Caveat to ensure that it is suitable when bringing a potential claim. There is a fee for entering a Caveat.
Can my Caveat be removed by the executor(s)?
The executor(s) will not be informed that a Caveat has been entered and this will only be revealed upon rejection of an application. If an executor applies for a Grant of Probate and a Caveat is in place, the Probate Registry will inform the applicant that their application has been blocked by the Caveat.
If the executors become aware of the Caveat and do not consider it appropriate, it is possible for them to challenge it by entering a ‘Warning’ at the Probate Registry.
What is a Warning?
A Warning is an objection to the Caveat. There is no fee payable to the Probate Registry for entering a Warning.
Once entered, the ‘Warning’ must be served on the Caveator (the person with the Caveat) and at this point, the Caveator has 14 days to respond to the Caveat by way of an Appearance. If no Appearance is entered within this time, the Caveat will be removed by the Probate Registry, allowing the Grant of Probate to be issued.
What is an Appearance?
If the Caveator wishes to keep the Caveat in place, they must file an Appearance at the Probate Registry within 14 days, setting out any reasons for the Caveat to remain in place.
Once an Appearance is entered, the Caveat becomes permanent and will only be removable by consent (of the parties) or by a Court order.
The parties therefore have the following options:
We strongly suggest that you seek legal advice prior to entering an Appearance to avoid the potential cost risks involved. In the event that a Caveat is mis-used, and your Caveat / Appearance is unsuccessful, you may become liable for both your own and the executor’s legal costs.
Standing Searches and how are they different to Caveats?
As an alternative, it may be suitable for a potential claimant to apply for a Standing Search with the Probate Registry. If a party applies for a Standing Search against the deceased’s estate, they will be notified once a Grant of Probate is issued and provided copies of the Grant of Probate and any will lodged with the application.
Standing Searches are useful if you are considering bringing a claim for financial provision under the deceased’s estate, including an Inheritance (Provision for Family and Dependants) Act 1975 claim. There is a limitation period for such claims and any court proceedings should be issued within six months from the Grant of Probate being issued.
By applying for a Standing Search, a potential claimant can keep an eye on the estate and ensure proceedings are brought prior to the expiry of the limitation period.
The relevant fee for entering a Standing Search is also £3.00 and can be renewed in the month before it expires.
If you are considering any of the above options we advise taking legal advice first.