Section 731.110 of Florida’s Probate Code allows any person who is apprehensive that an estate will be administered or that a will may be admitted to probate without that person’s knowledge to file a caveat with the court. “Caveat” is a Latin term that means “warning or admonition”. In the Florida probate context it refers to a mechanism that compels a local court to give you notice of any petition filed to administer a decedent’s estate (and as I wrote here, it’s reversible error if a probate judge ignores this obligation).

Especially if you’re anticipating a possible will-challenge, caveats are critically important defensive tools: they allow you to block an opposing party from getting him or herself appointed personal representative (“PR”) under an invalid will in advance of the litigation. The side that gets appoint PR has significant advantages in any probate case, and once a PR’s appointed, the court can’t just boot him out [see here, here, here].

Legislative fix:

Probate lawyers often try to file pre-death caveats, but some courts refuse to accept the filings. Neither the Florida Probate Rules nor the Florida Probate Code specifically prohibits the filing of a caveat if the person is not yet deceased; however, both the Code and the rules reference the content of a caveat in relation to a “decedent” and his or her “estate.”

Effective this year, F.S. 731.110 was amended to fix this problem and also generally improve the way caveats are administered. Here’s how the legislative fix is summarized in this Legislative White Paper:

EFFECT OF PROPOSED CHANGE GENERALLY:

The proposed change would permit the filing of a pre-death caveat by an interested person. So as to limit the burden placed upon the Clerk of Court to monitor pre-death caveats, the proposed change would provide that such caveats shall expire two (2) years after filing. The amendment would also exclude the filing of pre-death caveats by creditors of the decedent as the committee did not feel the appointment of a personal representative or the admittance of a potentially invalid will substantially affected the rights of creditors in an estate. The right of a creditor to file a post death caveat is not affected by this amendment. Finally, the amendment would also eliminate the inconsistencies between F.S. §731.110 and Fla. Prob. R. 5.260, bringing the statute in line with the procedural requirements of the rule.

ANALYSIS:

One of the primary purposes of F. S. §731.110 is to permit an interested personto require notice be served upon them and that they be permitted an opportunity to object to a petition for administration before a personal representative is appointed or the decedent’s purported last will and testament is admitted to probate. If the interested person is denied information regarding the death of the decedent, the purpose of the statute is defeated if the interested person is not permitted to file a caveat until after the death of the decedent. The clarification that pre-death caveats are permitted to be filed by interested persons assures that wrongdoers may not isolate individuals from their family and then obtain the appointment as personal representative or have a potentially invalid will admitted to probate without the interested person having any ability to require prior notice. The amendment also resolves the present inconsistency between the circuits in the interpretation of the present statute by the clerks of court regarding the acceptance of pre-death caveats. Finally, the amendment will limit the impact on the clerks of court by providing that the caveat will expire two years after filing. It would be the responsibility of the caveator to docket the pre-death caveat for re-filing or renewal at the termination of the two year period. The amendment also eliminates the inconsistency in procedural aspects between the statute and relevant rule and brings the statute in line with the rule.