After the loss of a loved one, families often face difficult questions—especially when the terms of a will are unexpected or the person named as executor is unfit. In these situations, it’s important to know that you do have options. If something about the will seem right, New Jersey law allows you to act to pause the probate process and protect your loved one’s legacy. Shawna A. Brown, Counsel of our Elder Law Practice Group, breaks down the process in the following video.
What Is a Caveat?
A caveat is a legal document filed with the Surrogate’s Court in the county where the decedent resided. It acts as a formal objection to either the probate of a will and/or the appointment of the named executor. Once filed, it halts the probate process, preventing the will from being admitted to probate and the executor from being appointed and acting for the estate until the matter is resolved through further legal proceedings.
After a caveat is submitted, whether the will is admitted to probate or not is an issue to be decided by the Probate Part of the New Jersey Superior Court, where a formal complaint must be filed by the person seeking to admit the will to probate. Absent an agreement between the parties, the complaint must be resolved before probate can occur.
This pause created by the caveat gives interested parties time to raise and investigate concerns in a complaint, such as whether the deceased had the mental capacity to create the will, if undue influence or coercion played a role in its terms, or if the proposed executor is unfit to serve.
When and Why You Might File One
Filing a caveat may be appropriate if you suspect the deceased lacked capacity, was pressured into signing the will or if you question the qualifications of the named executor. It can also be used when you believe a more recent will may exist, or the terms of the will seems inconsistent with what the decedent would have wanted.
Timing Is Critical
In New Jersey, a will cannot be probated until at least 10 days after death. However, once that period passes, the process can move quickly. Filing a caveat as soon as possible is crucial—it must be in place before probate is completed to pause the process. If it’s filed in time, the court will not move forward with probate until a formal complaint is brought in Superior Court and the issues are resolved.
Proceed with Care
Some wills contain a no contest clause, also known as an in terrorem clause, which states that anyone who challenges the will forfeits their bequest. Filing a caveat may trigger the clause, but the Court could also determine that the caveat was filed with good cause and decline to trigger the clause.
It’s important to speak with an attorney before filing a caveat to understand the filing process and potential implications. At Mandelbaum Barrett PC, we regularly help clients evaluate their options and act when needed, whether that means filing a caveat or a complaint seeking to probate a will.
