Probate Litigation


The Florida probate lawyer and attorney at The Florida Probate Lawyer, PLLC sometimes represents beneficiaries and personal representatives in probate courts in Florida dealing with probate litigation matters.

The probate litigation lawyer and estate litigation attorney at The Florida Probate Lawyer, PLLC, usually represents beneficiaries, personal representatives or estate creditors in will contests and estate litigation cases on an hourly fee basis. In some situations, the firm will take an estate litigation case on a contingency fee basis or other alternative billing arrangement. Please contact us to learn more.

There are two major types of litigation in probate, one is a will contest and the other involves estate litigation.

A will contest is a form of probate or estate litigation challenging the admission of a last will and testament to Florida probate court or seeking to revoke the probate of a Florida will that is already pending before the Florida probate court, or a claim that there is some impropriety taking place in the administration of the probate estate. A person cannot challenge the validity of a last will and testament in Florida probate court simply because he or she does not like its provisions, or did not, in their opinion, get what they wanted. Challenging the validity of a last will and testament in Florida probate court is not contingent on the elements of "fairness" or the reasonableness of its provisions or on the timing of distributions from the probate estate (such as if you prefer an immediate distribution, but the last will and testament provides for you to receive your estate distribution in multiple distributions at several year intervals).

A last will and testament is likely to be attacked in Florida probate court on the basis that the person who signed the Florida last will and testament lacked mental capacity (senile, dementia, delusional, unsound mind) at the time the estate planning documents were created; that the will maker was subjected to fraud, coercion or undue influence during the creation and implementation of the last will and testament; that there are ambiguities in the estate planning documents; or the last will and testament is a forgery; or does not conform to the legal requirements of Florida probate law, such as the manner in which it was signed, or the number and nature of the witnesses to the last will and testament.

If the last will and testament is invalidated by the Florida probate court, the probate court may disallow only that part of the Florida will that was challenged or it could invalidate the entire last will and testament. The assets of the probate estate might in that case be distributed as if the person died without a last will and testament (intestacy), or pursuant to the distribution provisions of a prior Florida will (the legal doctrine of dependent relative revocation), depending on the specific facts and circumstances involving the Florida probate estate.

When someone files an objection in probate court to the last will and testament being probated, or produces a different last will and testament, what is known as a "will contest" has begun. Florida wills contests, probate litigation, and estate litigation, are not rare. Even though few people are successful challenging a last will and testament in Florida probate courts, such will contests, or other probate litigation or estate litigation, can be very costly and create substantial delays in the completion of the Florida probate administration of the estate.

You can not legally contest a last will and testament in Florida probate court just because you think the results provided by the Florida will are not fair or are unreasonable. For example, if you feel your recently deceased next door neighbor's out of state children are awful people who didn't give her proper respect and they do not deserve to receive any assets from her probate estate, that will not provide a sufficient basis to challenge her last will and testament. To have the right to contest a last will and testament, or file other probate litigation or estate litigation, in Florida probate court, a person must have legally recognized "standing" to object.

A person must have legal “standing” to contest a last will and testament in Florida probate court. A child who was disinherited by the Florida will of an angry parent, or perhaps by a kindly parent who felt that the local charity rather than her children would benefit more from her probate assets, would have legal standing to initiate a "will contest". Or, should a last will and testament give one sibling a disproportionately large share of a parent's probate estate and the other child, or children, a disproportionately small share, the ones receiving less than their proportionate share have standing to challenge through probate litigation the last will and testament in Florida probate court. Another example of estate and probate litigation would be if a later last will and testament is less favorable to a beneficiary than an earlier Florida last will, or no will at all, then that person has legal standing to challenge the later last Will and testament by filing a will contest or other probate litigation or estate litigation in the Florida probate court.

The filing in the Florida probate court of a Florida will contest or other probate litigation, or estate litigation, sometimes is directed at removing the personal representative (executor) appointed by the Florida will or the Florida probate judge, in an effort to have a different person or trust company serve as personal representative for the Florida probate estate, or as a trustee of trusts created by the last will and testament.

Most of the challenges to invalidate a last will and testament are the result of probate and estate litigation filed by potential heirs or beneficiaries who were entitled to little or nothing from the terms of the Florida will that is being probated. According to Florida probate law, Florida will challenges or other estate litigation must be filed in the Florida probate court within a certain amount of time after receiving notice of the death or petition to admit the last will and testament to probate administration.

The most common probate and estate litigation challenges to a Florida last will and testament include:

    (1) the FL will was not properly written, signed or witnessed, according to the Florida probate law requirements;

Lack of Proper Formalities. Proper execution of a last will and testament requires that the will be signed by the testator (will maker) and witnessed by two unrelated witnesses, who also sign the last will and testament. A last will can be contested through probate litigation on the grounds that it was not properly drafted, signed, or witnessed in accordance with the applicable Florida probate law.

    (2) the decedent lacked mental capacity at the time the last will and testament was signed;

Lack of Capacity. Under Florida probate law, a testator is required to have mental competency to make a last will and testament and to understand the nature of his or her assets and the people to whom the probate assets are going to be distributed. A Florida will can be declared void if lack of capacity can be proven. Typically, incompetence is established through a prior medical diagnosis of senility, dementia, Alzheimer’s, or psychosis, or through the testimony of witnesses in the probate or estate litigation as to the irrational conduct of the deceased around the time the last will and testament was signed by the decedent.

    (3) there was fraud, duress or undue influence exercised by someone who had a special relationship with the deceased;

Undue Influence. Undue influence occurs when the testator is compelled or coerced to execute a last will and testament as a result of improper pressure exerted on him or her, typically by a relative, friend, trusted advisor, or health care worker. In many cases, the undue influencer will upset a long established estate plan where the bulk of the estate was to pass to the direct descendants or other close relatives of the decedent. Some undue influencers are new friends or acquaintances of the decedent who “befriend” the decedent in the last months or years of life, typically after the decedent has suffered some decline in mental ability. In other situations, one child of the decedent, often a caregiver, will coerce the decedent to write the other children out of the will. Undue influencers can also be health care workers or live in aides who implicitly or explicitly threaten to withhold care unless the Florida estate plan is changed in favor of the health care worker.

    (4) the Last Will and Testament was forged or was a forgery;

    (5) breach of fiduciary duty;

Breach of Fiduciary Duty. The personal representative of a probate estate owes the beneficiaries of the estate the fiduciary duties of honesty, prudence, and loyalty. When those duties are violated by a personal representative, a bequest may be put in jeopardy and probate and estate litigation often follows. The probate litigation lawyers and estate litigation attorneys of The Florida Probate Lawyer, PLLC represents probate beneficiaries and personal representatives with the following issues related to breach of fiduciary duty and other probate administration issues:

    a. Failure of the personal representative of the Florida probate estate to follow the Florida Probate Code, Florida Rules of Probate, or an order of the Florida probate court;

    b. Probate fraud;

    c. Improper investments;

    d. Self dealing or conflict of interest;

    e. Excessive compensation;

    f.  Mismanagement or failure to manage the probate estate;

    g.  Actions or conduct by the personal representative that would have disqualified that person from the appointment as personal representative if it has existed at the time of the appointment;

When the personal representative’s negligence or fraud with regard to the probate estate results in a financial loss to the probate estate, the probate court, through probate or estate litigation, can remedy the situation through a monetary award against the personal representative or others involved in the wrongdoing. The Florida probate court can also remove the personal representative if cause can be shown.

    (6) elective share;

Florida Elective Share. The Florida elective share provides a surviving spouse in Florida with a portion of a deceased spouse’s estate according to a detailed formula, based on the total probate and non-probate assets of the deceased. If the surviving spouse is displeased with the inheritance created by the decedent's estate plan, the surviving spouse can instead take the Florida elective share, if the election is made in a timely manner. Under Florida probate law, the elective share is 30% of the augmented probate estate.

Most surviving spouses can benefit from hiring a Florida probate lawyer to ensure that there is a timely election of the elective share filed with the Florida probate court, that the Florida elective share is computed properly, that all appropriate probate and non-probate assets are included in the calculation, and that the elective share is distributed according to Florida probate law.

The surviving spouse has 6 months from the receipt of the probate estate's notice of administration to file with the Florida probate court the Florida elective share election. Once the election is made, the personal representative of the probate estate is required to prepare and file the elective estate inventory, which is filed with the Florida probate court. After the elective share inventory is filed, there is a specified amount of time within which the surviving spouse may challenge the completeness or valuation of the elective share inventory. 

The time for filing a will contest, or other probate or estate litigation, in the Florida probate court is short, typically 90 days after the Notice of Administration has been provided by the Personal Representative. Therefore, prompt action is required to have the opportunity to recover your previously lost inheritance.

Not only can a last will and testament be challenged on the grounds set forth above, a trust can be challenged on the same grounds, as well as a real estate deed or a beneficiary designation on a financial account, life insurance policy, or annuity. There are many situations where the undue influencer will demand, cajole, trick or otherwise persuade a weakened person to sign over valuable Florida real estate, bank accounts, or other property and estate assets directly to the influencer, with the hope that the perpetrator will have left the scene before the wrongdoing can be discovered and remdedial action taken. Sometimes, the undue influencer will be added as a beneficiary on bank accounts in place of the heirs to whom the decedent intended the account to pass.

If the wrongdoing is discovered prior to the decedent's passing, a common way for a loved one to begin to remedy the situation is to create a Florida guardianship for the person who is being subjected to the undue influence, which will allow the guardian appointed by the Florida probate court to use the Florida probate court's jurisdiction to reclaim estate assets that were fraudulently removed from the possession and control of the decedent. If any estate planning documents were also changed because of undue influence, the Florida guardianship will allow evidence to be collected for use at a subsequent will contest proceeding, or other probate or estate litigation, in the Florida probate court, to obtain the return of the affected estate assets.

Estate litigation may include opening a probate estate to file a wrongful death lawsuit against those responsible for the death of the decedent. Estate litigation can also include situations where the heirs, family members and beneficiaries are not disputing what the decedent did with his or her probate assets through the last will and testament or revocable living trust; instead, the estate litigation may be a lawsuit against third parties who may be indebted to the decedent, who violated the terms of a contract with the decedent, or who refused to turn over property belonging to the probate estate. Typcially, such probate litigation and estate litigation involves someone other than the heirs and beneficiaries of the Florida probate estate, though heirs or beneficiaries may be involved.

Estate litigation also includes situations where third parties file lawsuits against the probate estate for debts the decedent owed to the third parties, or if the decedent may have caused injury to another, or breached his contractual duties to another.

If you need a Florida probate litigation lawyer or estate litigation attorney to assist you in taking some action involving the administration of a Florida probate estate, a Florida will contest, Florida probate litigation, or Florida estate litigation, please contact The Florida Probate Lawyer, PLLC, to see how we may be able to help you handle your Florida probate matter.  Our Toll Free telephone number is (888) 492-2468; or you can email us at Info@TheFloridaProbateLawyer.com

This material represents general legal information about Florida probate litigation. Since the Florida probate law, estates law and trusts law are continually changing, some provisions may be out of date. It is always best to consult an experienced Florida probate litigation lawyer or estate litigation attorney about your legal rights and responsibilities regarding your particular Florida probate case.