In Florida, contesting a will is done through probate court. In most cases, challenges to a will must be submitted before the probate process is complete. More specifically, the challenge must be filed within three months of receiving notice regarding the will; this duration can be extended if notice was not provided and the probate process is still ongoing. There are many reasons for contesting a will in Florida; this ranges from issues with the document itself, to unfortunate foul play from a family member, caregiver, or another party. Needless to say, these cases can be highly complex and emotionally draining for those involved; therefore, legal representation by a Florida probate lawyer experienced in will contests is extremely vital for your case.
The attorneys at Di Pietro Partners have decades of experience in Florida probate litigation cases including will contests. If you have legal issues with a will anywhere in the State of Florida, call our lawyers for a free and confidential case evaluation today. 1.800.712.8462
Reasons For Contesting a Will in Florida
In order for a will to be contested in Florida, valid legal grounds are required. Someone cannot simply contest a will because they disagree with the division of assets, or have a bad relationship with a testor/beneficiary. With that said, there are circumstances where a will can be disputed in a court of law; these circumstances include, but are not limited to the following:
Validity – This remains one of the most common reasons for challenging a will. This may include challenging the validity of a will based on the competency of the party drafting the will, disputing the validity of a will based upon the existence of additional or subsequent documents, or challenging validity based upon undue influence over the decedent prior to death.
Estate fraud – If a will is executed under false pretenses, it may be contested. For instance, if a beneficiary, lies or misrepresents facts to the testor, and the will is altered based on these false facts, victims may challenge the will.
Forgery – Needless to say, if a will, or any other legal document is fraudulently signed, it’s considered invalid in a court of law.
Mental capacity – Wills need to be formally drafted, signed, witnessed, and executed by someone with full mental capacity. In other words, this individual must possess the ability to comprehend the assets, beneficiaries, and effect of the document. Common reasons a will is contested on the grounds of mental capacity involves testors with late-life diseases such as alzheimer’s and dementia. Other factors that may contribute to diminished mental capacity include: brain injuries, disability, intoxication (including prescribed medication), and more.
Improper execution of the will – Simply put, if a will was not properly signed, drafted, or witnessed, it can be contested in court. Under Florida law, this includes a proper signature by the testator of the will along with two witnesses. Florida Statute 732.502 details the specific process involved in valid execution of a will. According to the Statute, “The testator must sign the will at the end; The testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction…” (The Florida Senate, 732.502 Execution of wills, 2011)
Types Of Wills
Wills are an essential part of any estate plan and are applicable to anyone regardless of the size of their estate. Wills serve many purposes; for instance, they help provide care for loved ones after someone’s passing, detail funeral arrangements, and detail how assets are distributed post-mortem. The State of Florida has a specific process for the drafting, witnessing, and execution of a will. If this process is not properly followed, then the will has a better chance of being successfully challenged in probate court.
There are many different variations of wills; however, only certain wills are legally recognized in a given State. Below are some of the most commonly used wills in the State of Florida.
Simple Will – As the name may suggest, this will is the most common, and the most “straightforward” compared to others. Basically, a simple will is a legal document that details wishes of the person writing the will (the testator). This includes: the distribution of assets after death, care for family members, and more. This is commonly known as the “last will and testament.”
Pour-Over Will – Simply put, this is very similar to a “simple will;” however, one difference is that the pour-over will dictates what property/assets should be placed in a trust after your passing.
Complex Will – As the name indicates, a complex will is more in-depth. This will is commonly used for estates that are large and/or have specific conditions such as: estate taxes, special needs trusts, etc.
Testamentary Will – The testamentary will actually involves setting up a trust within a will. In fact, the real name of this document is “testamentary trust,” and is commonly referred to as “will trust” or “trust under will.” This provides more flexibility for an estate planning strategy in several ways including the potential in reducing/avoiding estate taxes.
Get Help Today
The lawyers at Di Pietro Partners are highly experienced in cases involving probate and wills. Our main office is in Ft. Lauderdale, FL and we’re dedicated to serving clients involved in estate litigation cases anywhere in Florida. This includes clients who are currently located outside the State, but have matters related to probate litigation/contesting a will in Florida. If you believe you have valid legal grounds to dispute a will, or are being wrongfully challenged and need proper defense, call our offices for a free consultation today.