What is a grant of probate?
A Grant of Probate is a grant obtained from the Probate Registry, providing the executors with 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. For this reason, it may be beneficial to prevent a Grant of Probate being obtained if you wish to bring a potential claim.
For a variety of reasons, someone might not want a Grant of Probate to be taken out. This might be because of a 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:
- The deceased did not have testamentary capacity to execute a will;
- The deceased’s will is fraudulent;
- The deceased was unduly influenced into executing a will; and/or
- The deceased has a lack of knowledge and approval.
Claims under the Inheritance (Provision for Family and Dependants) Act 1975 should not be protected by a Caveat.
What does a Caveat do?
Once a Caveat is entered, the Probate Registry are unable to issue a Grant of Probate in favour of any applicant, ensuring that the estate assets are not administered or dealt with in any way. If there is 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. The current fee for entering a Caveat is £3.00.
Can my Caveat be removed by the executor(s)?
The executor 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 its existence by entering a ‘Warning’ at the Probate Registry.
What is a Warning?
A Warning is an objection to the Caveat and does not come at a charge.
Once entered, the ‘Warning’ must be served to the Caveator (the person with the Caveat) and at this point, the Caveator will have 14 days to respond to the Caveat by way of an A. If no appearance is entered within this time, the Caveat will be removed by the Probate Registry, allowing a 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 remaining in place.
Once an appearance is entered, the Caveat becomes permanent and will only be removable by consent of the Caveator or by a court order.
If a Caveat becomes permanent, the parties have the following options:
- Negotiate and agree a settlement;
- Commence court proceedings disputing the validity of the will; and/or
- Commence court proceedings seeking an Order to remove the Caveat.
We suggest that you seek legal advice before entering an Appearance to avoid the potential cost risks involved. In the event that a Caveat is mis-used, and your claim is unsuccessful, you may become liable both your own and the executor’s legal costs.
Standing Searches and how are they different to Caveats?
Alternatively, 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, 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.
It is always a good idea to take legal advice on these issues.