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Attorney David Di Pietro| |Probate

Florida Probate Litigation Overview

Probate litigation includes legal cases regarding guardianship, will and trust disputes, involuntary hospitalizations, and competency hearings. The Probate Division of Circuit Court handles probate litigation cases. Most often, litigation occurs when people with fairly large estates pass away without a will or trust. Other times, family members may dispute a will or trust after a loved one dies. Then, probate litigation becomes necessary to resolve any financial or property issues.

Probate Litigation Attorney

Losing a loved one is a difficult time. Often during these sad moments we do not think clearly. For that reason alone, it remains vital to contact a probate attorney to look at your loved one’s Will or Trust documents. It’s imperative to make sure there were no “last minute changes” while your beloved family member was ill or mentally incapacitated. Of course, if you lack access to these documents try and locate them. If the deceased never filed or wrote any will or trust, you will need an attorney to represent the family in Probate Court.

Probate is a specialized area of law that involves all matters related to the transfer of assets and inheritance between family members or beneficiaries after an individual passes away. Unfortunately, this process is not always straightforward and disputes may arise even when the decedent has a solid estate plan in place. These issues may include actions of the personal representative or trustee, the mental state of the decedent, or issues with creditors. A probate litigation attorney specializes in legal disputes involving wills, trusts, or other aspects of the probate process.

Grounds for Contesting a Will

Florida Last Will and Testament next to a judges gavel symbolizing contested wills

In order to contest a will you must have “legal standing.” In other words, you must have some relationship to the deceased, or be a creditor. So, a spouse, child, parent, or step-child could contest a will. It’s important to note, Florida Law allows you to contest a will while the probate process is going on.

Once the formal process is complete, it may be too late for you to challenge the will. Consequently, seek legal advice immediately if you have concerns over the terms of a loved one’s will. Basically, there are three main grounds for contesting a will.

  • A will is a legal document and must follow certain drafting and filing procedures. In Florida, a will must:
  • Be in writing
  • Be signed in the presence of two witnesses
  • Must be signed by the person writing the will (the testator)
  • The person making the will must be competent
  • The will does not need to be notarized
  • The person writing the will must be mentally competent and at least 18 years old. If a family member, or another person forces a mentally incompetent person to write, or rewrite a will, this will may be invalid.
  • Another ground for contesting a will is when undue influence was exerted upon the testator. For example, a family member could lie to an elderly parent and claim they are bankrupt, or having financial difficulties. After months, or years of upsetting this elderly parent this family member may coerce the testator into changing their will. Sadly, this happens in some families. Then, when the relative passes away, sons and daughters learn of a will being changed in the last months of the elderly person’s life. Naturally, this is a horrible thing to do and may be challenged in probate court. The key is to challenge the will immediately. Many times, family members are so grief stricken, they are not emotionally equipped to fight family members in court. For this reason, hire an experienced estate and probate attorney immediately if you see a will was changed in the last few months or years of a loved one’s life.

Grounds for Contesting a Trust

Florida Revocable Living Trust next to a judges gavel symbolizing trust litigation

Trust disputes are complicated and may become costly. So, it’s important to hire an experienced attorney to handle this type of case. Unlike a will, a Trust is not a public record and does not get deposited with Probate Court when the person who created the Trust dies. A Trust is confidential; however, if you are one of the beneficiaries of the trust, you are entitled to a copy of the document.

If you feel the trustee is not being honest with the proceeds of the Trust, you must contact an attorney within three months after you receive notification. It’s advised that you contact an attorney that’s experienced in trust litigation as this is a very specialized area of law.

Similar to a Will dispute, if the family feels undue influence was placed upon their loved one to execute the Trust document, that may be grounds for contesting the trust.

Assets Exempt from Florida Probate Court

Every material or financial possession does not pass through Probate Court. Some assets pass directly to heirs including:

  • Transfer on Death Accounts- Bank or Credit Union Account with a transfer on death designation will pass directly to the beneficiary.
  • Beneficiary Accounts- Any Bank, Credit Union, IRA, Stock, 401K, or other accounts with a beneficiary designation pass to that person.
  • Some Real Estate- Any Real Estate owned jointly, passes to the joint owner. If a couple is married, the house passes to the surviving spouse, unless there is a prenuptial agreement that states otherwise. Florida Homestead laws should be discussed with your attorney.
  • Revocable Trust- The document states where all assets go.
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