Florida Probate Litigation Attorneys
Probate is the legal process by which a person’s debts are paid and
assets owned are distributed upon death. Probate administration may be
overseen by a Florida court.
However, in the absence of a dispute, there is no need for a formal lawsuit
to be filed. There are times, though, when adversarial matters arise in
probate. When controversies culminate in the filing of suit, this is called
When a deceased person’s Last Will and Testament is offered for probate,
a series of statutory and procedural requirements under Florida law arise
as part of the process. Creditors, heirs and other interested parties
are afforded various rights and faced with various requisites. Often,
not all interested parties are satisfied with the contents of the Will,
the result of probate, or the method of administration, among other things.
In these situations, probate litigation can arise.
When Probate Litigation Arises
Probate litigation often involves one person, typically a surviving family
member, contesting the deceased individual’s Will, generally to
correct a wide range of potential injustices.
probate litigation in Florida begins with a Notice of Administration. A Notice of Administration
alerts all interested parties of the death of the decedent, the filing
of a Will for probate, and that an objection to the probate proceeding
must be filed within a specified timeframe. Once this limited period has
passed (normally 20 days after receipt of the Notice of Administration),
any promises, representations or guarantees to resolve a dispute are unenforceable,
and the opportunity to contest the case will be lost. Before your time
is up, it is imperative to contact a knowledgeable probate litigation attorney.
Probate Litigation Claims: Contesting a Will
There are many grounds to contest a Will. The most common include:
Failure to Comply with Execution Requirements
Wills must be executed in accordance with Florida laws. If a testator
makes a mistake in executing his or her Will, the Will may not be valid
Florida law requires that when drafting a Will, the testator must do so
freely and without coercion by a person who is in a position of trust
and control. If a will is created under coercion, the Will may not be
valid under Florida law.
Lack of Testamentary Capacity
Florida law requires that a person making a will have the mental capacity
to do so, and in the absence of testamentary capacity, the will may not
be valid under Florida law.
Additional Probate Litigation Claims
Probate litigation may also involve the following claims:
Wills may be drafted vaguely, beneficiaries may have passed away, or have
disappeared. There are times when a Will does not fully dispose of one’s
estate. In those circumstances, a court must assist in determining proper
Determination of Heirs
Sometimes a decedent leaves no will, so the decedent’s estate is
administered through intestacy, which is governed by Florida Statute.
Often, a court must assist in determining the appropriate heirs.
Elective Share Litigation
The spouse of a person who dies domiciled in Florida has the right to
a share of the elective estate. Generally, absent of valid pre-marital
agreement, a surviving spouse has the right to claim 30% of the elective
estate. In circumstances where a spouse is not left what he or she is
entitled to, the spouse must litigate his or her elective share rights.
Breach of Fiduciary Duty
A person appointed by a court to administer a decedent’s estate
is charged with various
fiduciary duties and responsibilities. The failure to properly administer an estate can
be actionable, to remove the fiduciary or to recover funds which have
been wasted or mismanaged.
Call for a Free Consultation
If you believe your loved one’s estate has been mishandled or that
the terms of your loved one’s estate have not been honored, probate
litigation may be necessary to obtain a satisfactory outcome. Before moving
forward with probate litigation, it is essential to consult a skilled
Florida probate litigation lawyer. We understand that you have a lot at
stake, such as financial losses as well as your family relationships.
The attorneys at Kelley/Uustal can help you resolve your probate dispute
effectively. Call us today to schedule a