Welcome to our FAQ page for contesting wills in Florida. This page answers some of the most questions that we see and hear as probate lawyers with decades of trial experience.
It’s important to note that information within this page can help guide someone in the right direction; however, this is not a substitute for professional legal advice. If you or a loved one has questions related to contesting wills, or estate litigation, it’s important to seek advice from a probate attorney as soon as possible as having legal counsel is required by Florida Law.
Q. What is a will contest?
A will contest is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator (the person who made the will). The challenge can be made for various reasons including; undue influence, Lack of Testamentary Capacity, forgery, etc.
Q. Can I contest a will?
Yes, you can contest a will if you believe it doesn’t accurately reflect the testator’s intentions or if you suspect it was executed under dubious circumstances. However, to do so, you must have legal standing, meaning you’re directly affected by the will’s outcome. Common grounds for contesting include concerns about the testator’s mental capacity, evidence of undue influence, or irregularities in the will’s execution. It’s essential to consult with legal counsel and be aware of the specific time limits and requirements in your jurisdiction.
Q. What is the Success Rate of Contesting a Will?
The success rate for contesting a will can vary based on numerous factors, including the strength of evidence, the grounds for the contest, the skills of the attorneys involved, and the specific facts of each case. In general, successfully contesting a will can be challenging. Most wills go through probate without being contested. When wills are contested, it’s often because there’s a genuine concern about the circumstances under which the will was drafted or executed.
Q. How do you contest a will?
In order to contest a will in Florida, you first need to have legal standing, which means you’re directly affected by the outcome of the will, either as a named beneficiary or a potential heir. If you anticipate issues with a will before it enters probate, it’s often advised to file a caveat with the probate court, ensuring you’re notified when the will is submitted for probate. Once the will is in probate, the personal representative of the estate should provide a “Notice of Administration” to interested parties.
If you intend to challenge the will’s validity, you must file a formal objection with the probate court within the time frame specified, usually within 20 days of receiving the notice. After your objection, the probate process pauses, shifting the matter to litigation where both sides present their evidence.
The issue can be resolved through a settlement between parties or a court judgment after a trial. The reasons for contesting might include undue influence, fraud, improper execution, or the existence of a later valid will. Given the intricacies of the process, consulting with an experienced probate or estate attorney in Florida is crucial.
Q. How long do you have to contest a will?
This depends on the circumstances of your case. Generally speaking, a will can be contested at any time before the probate process is finished. Once a will is filed, it’s required that creditors, beneficiaries, etc. are provided notice. After notice is provided, you have 90 days to challenge the will before the probate process is complete. After this 90 day window is closed, you generally cannot challenge a will; however, there are exceptions to this rule. For instance, if someone was prevented from contesting the will due to fraudulent activity (i.e. failure to provide notice of the decedent’s passing) then you can file a claim even after the will is probated.
Q. What if someone dies without a will?
When someone dies without a valid will, assets/property are considered “intestate” and the probate process becomes more lengthy and complex. If someone dies intestate, the State of Florida will try and determine who receives assets based on relation to the deceased individual. In other words, these assets will generally go to a spouse, or family member. We wrote an article on intestate succession that covers this topic in greater detail.
Q. On what grounds can a will be contested?
A will can be contested on numerous grounds. The most common are: (1) undue influence; (2) lack of testamentary capacity; (3) Mistake; (4) Execution without the proper formalities; (5) fraud or duress; (6) Revocation of the will prior to death; or (7) insane delusion. Each ground to contest a will requires that multiple elements be proved to establish that the will should not be admitted to probate under Florida law, or should be revoked from probate.
Q. Can someone contest a will if they are not in it?
Yes. A will can be contested by an heir-at-law (someone who would inherit in an intestate estate) or by a beneficiary or personal representative under a prior will. It is important to note that if the decedent has multiple wills, then all wills excluding that certain heir, beneficiary or personal representative under a previous document must be successfully challenged for that person to inherit.
Q. Can a will be contested after probate?
No. Once an Order of Discharge is entered by the court (closing the estate and discharging the personal representative), a will may no longer be challenged.
Q. Do I need a lawyer to contest a will?
Whether you’re a personal representative, executor, beneficiary, or other interested party, you absolutely require a legal professional when it comes to legal disputes involving wills. In these cases, you should obtain council from an experienced estate litigation lawyer who specializes in will contests within your state.
Q. What is the statute of limitations on contesting a will?
An action to contest the validity of a will or the revocation of all or part of the will may not be commenced before the death of the testator. Florida Statute §732.518. An interested person who is served by formal notice with a copy of the Petition for Administration and the will sought to be admitted to probate will generally have 20 days after receipt of service to respond to the Petition for Administration and object to the probate of the will.
See, Florida Statute §733.2123. An interested person upon whom notice of administration was served (after the will is already admitted to probate and Letters of Administration are issued) must object to the validity of the will by filing a petition for revocation of probate or other proper pleadings within three months after service of a copy of the Notice of Administration. See, Florida Statute §733.212(3). However, as will be explained later, the decision of Hill v. Davis, 70 So. 3d 572 (Fla. 2011) implies that fraud may be a basis to extend this deadline.
Q. How long after probate can a will be contested?
In accordance with Florida Statute §732.518. An interested person who is served by formal notice with a copy of the Petition for Administration and the will sought to be admitted to probate will generally have 20 days after receipt of service to respond to the Petition for Administration and object to the probate of the will.
Q. How long does it take to contest a will?
The process to contest a will is a lawsuit. Like any lawsuit, the time frame to complete the case varies based on the facts of each case. Each case is different, and because of this the time frame for each case is different. Florida probate cases must be closed within one year under law, but that period can always be extended by court order.
Q. What is the time limit for contesting a will?
An interested person who is served by formal notice with a copy of the Petition for Administration and the will sought to be admitted to probate will generally have 20 days after receipt of service to respond to the Petition for Administration and object to the probate of the will.
Q. Can you contest a trust?
Yes, you can contest a trust much like you can contest a will. Contesting a trust means that you are legally challenging the validity of the trust document, its terms, or the actions of the trustee. This area of law is commonly referred to as trust litigation. Common reasons for trust litigation include,