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Probate Litigation

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 probate litigation.

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.

Normally, 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 or binding.

Undue Influence
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:

Will Construction
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 estate distribution.

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 free consultation.

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