Blogs from August, 2021

A couple going over probate paperwork with an attorney

Probate litigation is the judicial process by which individuals attempt to petition for relief from a perceived wrong or for other direction from the court concerning a loved one’s will or trust. It refers to the legal proceedings associated with contesting a will, addressing a breach of fiduciary duty, enforcing statutory rights (like elective share) among a litany of other probate-related issues. Below, our Florida probate team provides insight into different litigation issues and what factors cause them to surface.

Circumstances That Lead to Litigation

Some of the more common grounds for probate litigation are:

The Will is Suspected to be Invalid

Estates may have large amounts of money in them, and some individuals may have attempted to manipulate the documents controlling the disposition of that money for personal gain. There are several ways someone can challenge a will including:

  • Lack of Testamentary Capacity: Under Florida law, there are four elements required to prove testamentary capacity: i) testator must understand the nature of the testamentary act, ii) the testator must understand and recollect the nature of their property, iii) testator much know who the natural objects of their bounty are (for example, a parent’s natural objects are his/her children), and iv) testator must known manner in which the disposition is to occur. Click here to read more about lack of testamentary capacity.
  • Undue Influence: Undue influence occurs when there is over-persuasion, duress, force, or coercion to such a degree that the testator’s free agency and willpower are diminished. Click here to read more about undue influence.
  • Fraud: This can simply consist of creating a document and forging the proper signatures, or even tricking someone into signing a will without fully understanding its contents.

Family Members Litigatating out of Frustration

If someone were to go through their entire adult life with the belief their parents would leave them their rightful share of their estate, only to find out they were omitted in part or entirely in favor of someone they believe is not entitled to a share of the estate, it can be easy to understand their frustration. This disappointment can often lead to family members and heirs seeking to challenge the validity of the estate to gain what they feel they are owed.

Most Common Types of Probate Litigation

There are several types of disputes that can occur during probate resulting in litigation. From the wording within the will itself to naming an executor, these issues can add great unforeseen length to the probate process, making each example worth preparing for.

Executor Challenges

When entering probate, an executor is appointed to take over the financial responsibilities of the estate and make several important decisions, involving the distribution of assets. Disputes can arise when the named executor does not want to be the executor or the family may doubt their capabilities.

Some beneficiaries may even attempt to accuse the executor of fraudulent behavior or self-dealing when it comes to asset distribution.

Breach of Fiduciary Duty

The executor is the fiduciary, often an individual family member, appointed to fulfill the terms set within the will. If for whatever reason, they don’t act per the decedent’s instructions or their wishes under the law, probate litigation is typically sought to suspend or remove the fiduciary, appoint a responsible fiduciary, and even recover damages from the fiduciary for the breach.

Disputing the validity of the Will

This is one of the most common types of probate litigation. The aforementioned ways a will can be contested are by proving:

  • Undue influence
  • Lack of testamentary capacity
  • Fraud

These circumstances are often observed in cases of elderly or impaired loved ones where making an unnatural person a beneficiary, for example, would be considered suspicious.

Contact Our Florida Probate Team Today

Probate litigation has the potential to be long and arduous. Because of this, enlisting the aid of a seasoned probate legal team can help you navigate the process. At Adrian Philip Thomas, P.A., we have the experience you need to ensure a steady and efficient probate process.

To schedule a free consultation with our team, do not hesitate to contact us today through our website or give us a call at (954) 764-7273!

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