I get calls from people who, for various reasons, are not interested in serving as a personal representative in Florida probate, but who are very interested in knowing if someone else plans to serve in that capacity.
Say, for example, a deceased person owed you money. You might not want to undertake the burden of Florida probate yourself, but you would want to know if someone else is probating the estate so that you can submit a claim if the estate is opened in a Florida probate court.
Or suppose that you are concerned that a sneaky family member will attempt to probate an estate and make misrepresentations to the court. While you don’t want to serve as personal representative yourself, you do want to know if anything is filed with the Florida probate court so that you can be sure that everything is on the up-and-up.
How would you go about protecting yourself in these situations? The answer involves a process known as caveat. A caveat is a written notice that can be filed with a Florida probate court that requires the person filing the caveat, known as the caveator, to be notified if anything is filed in that case.
The Florida caveat procedure is found in Florida Statutes Section 731.10, which provides
Any interested person who is apprehensive that an estate, either testate or intestate, will be administered or that a will may be admitted to probate without that person’s knowledge may file a caveat with the court.
The timing of the caveat depends on who is filing it. If a creditor is filing a caveat, it can only be filed after the decedent’s death. But anyone else can file a caveat at any time, either before or after a person’s death. But a caveat that is filed before a person’s death will expire in two years after the filing.
For example, a relative of a sick family member could file a caveat in the appropriate Florida probate court while the sick family member is still alive. If the sick family member dies within two years, the relative/caveator would be notified of any probate proceedings. But if more than two years pass after the filing of the caveat and the family member is still alive, the caveat would expire at the end of the two years.
If someone other than a creditor files the caveat, the court cannot admit the will to probate or appoint a personal representative without serving that person with notice. But if the caveator is a creditor, the clerk only needs to notify the creditor of the date that letters of administration are issued and the contact information of the personal representative.
If an out-of-state party wants to file a caveat, he must either (a) be represented by a Florida probate attorney who signs the caveat or (b) designate a Florida resident who lives in the county where the caveat is filed to serve as agent.