Blogs from March, 2011

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What is Probate Litigation?

In Florida, probate litigation is one of the most hotly-contested areas of the law; here, surviving family members use the judicial system to correct an array of injustices. Probate is the legal process by which a person’s debts are paid and assets owned by the decedent are distributed upon death. Probate litigation frequently arises in the context of a Will contest.  When a decedent has created a Last Will and Testament and it is offered for probate, Florida law grants creditors and heirs various rights, privileges, and limitations that must be strictly followed.

Usually, Florida probate litigation is first considered by a client when they receive a Notice of Administration alerting them that an objection to the probate proceedings must be commenced within a certain period of time or be forever barred. Probate litigation is the broad concept of challenging the contents of the Last Will and Testament; a provision of the Last Will and Testament; the appointment of an executor (Florida law refers to an Executor or Executrix as a Personal Representative); or the entire document itself. The facts of each dispute will define the exact cause of action (e.g., Lack of Mental Capacity, Undue Influence, Duress, Intentional Interference with an Expectancy, and/or Improper Signing of the Will) that needs to be prosecuted or defended. However, one should never rely on a promise to “even out” the estate or “take care of it” soon if served with a Notice of Administration. Once, the very limited time period (usually 20 days) passes, any promises, representations, or guaranteed to settle any estate dispute or disagreement are worthless and unenforceable unless an attorney has entered into an official settlement agreement.

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