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Occasions arise from time to time when a person dies leaving a purported Last Will and Testament that is suspect for various reasons including but not limited to that at the time of execution the decedent did not know the nature and object of his or her bounty, the document comes into existence as a result of fraud, duress, or undue influence; the Will is a forgery or the Executor named therein is incapable of carrying out the obligations, duties and responsibilities of his office.
If a person is an interested party, pre-probate procedure if timely instituted is available to stop the Last Will and Testament from being probated.
The procedure involves the filing of a “caveat” with the Surrogate of the County where the decedent died and, if necessary, based on specific circumstances, in Counties where there is a possibility the Last Will and Testament might be offered for Probate.
Succinctly stated, a “caveat” is a formal notice filed by the interested party with the Surrogate(s) or an appropriate court official(s) requesting the postponement of institution of any probate proceeding until the filer is heard.
Under the current Rules of Court once a caveat is filed the Surrogate is powerless to act.
By utilizing this type of litigation tool the person offering the Last Will and Testament is forced to prove to a Superior Court Judge that the purported document is indeed valid and meets legal requirements.
Timing is an essential element. The caveat should be filed within 10 days of the decedent’s death or alternatively it must be filed before the Last Will and Testament is probated.
Remedy in the event a named Executor fails, refuses or neglects to timely offer the decedent’s Last Will and Testament for Probate.
Neither the existing Court Rules of Civil procedure nor any State Statute specifically delineates a time certain in which the Last Will & Testament of a decedent must be offered for probate.
In order to compel the probate of a Last Will & Testament by way of Judicial intervention there is no magical checklist or formula required. However, in general, an interested party must demonstrate to the Court that based upon existing facts and circumstances, among other applicable grounds:
OBJECTION OF APPOINTMENT OF EXECUTOR/ADMINISTRATOR.
Generally, an interested party must demonstrate to the Court that based upon existing facts and circumstances, among other applicable grounds:
When dealing with estates, it is imperative that an individual, beneficiary or interested party, be fully apprised of all legal parameters and consequences applicable to that specific estate.
This article is intended to be helpful and informative. But even common legal matters can become complex and stressful. A qualified probate lawyer can address your particular legal needs, explain the law, and represent you in court. Take the first step now and contact a local probate attorney to discuss your specific legal situation.