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  • The American Lawyer, Adrian Philip Thomas

Florida Probate Litigation Attorney


Probate is the legal process by which a person's debts are paid and assets owned by the decedent are distributed upon death.  Sometimes a will is involved, sometimes not.  While the probate matter may involve oversight by a Florida court, there need not be any formal lawsuit involved; however, there are times when adversarial matters arise in probate.  When these controversies culminate in formal lawsuits being filed, they will involve what is referred to as estate litigation or probate litigation.

What is probate litigation?

When a deceased person’s Last Will and Testament is offered for probate, there are many requirements placed upon the probate process by Florida law.  Creditors and heirs are all accorded various rights, privileges and limitations that must be strictly followed.  The Will itself is available for review, and not everyone involved may be satisfied of the result when the provisions of the Will are read in conjunction with the legal mandates.

Probate litigation often involves a will contest.  In Florida, probate litigation is one of the most hotly-contested areas of the law, used by surviving family members to correct an array of injustices.

Usually, Florida probate litigation is first considered by an individual when they receive a Notice of Administration.  This is a formal document that alerts all interested parties of the death of the decedent, the filing of a Will for probate, and that an objection to the probate proceedings must be commenced within a certain period of time or be forever barred.

The recipient of a Notice of Administration will have a unique situation, and a dispute that may have a variety of legal bases (e.g., Lack of Mental Capacity, Undue Influence, Duress, Intentional Interference with an Expectancy, and/or Improper Signing of the Will).   However, regardless of the simplicity or complexity of their claim, or any promises made to them that things will be "evened out" in the estate or someone will "take care of it," the Notice provisions will hold.

Once an individual is served with a Notice of Administration and a 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 the parties have entered into an official settlement agreement (written, signed, etc.).

The Types of Probate Litigation

There are several grounds for contesting a decedent’s Last Will & Testament, including:

  1. Mistake in Execution – as detailed above, Florida Statute §732.502 sets forth the execution requirements for a will to be valid in the State of Florida.  If any of these provisions are not met then the document is not a valid will under Florida law.
  2. Undue Influence – an undue influence claim challenges whether the person making the Will did so freely and without being coerced by a person who was in a position of trust and control.
  3. Lack of Testamentary Capacity - a lack of capacity claim is asserted based upon the belief that at the time the Will was executed the person making the Will did not have the requisite mental ability to understand a) the amount and nature of his property; b) the family members and loved ones who would ordinary receive such property; and c) how the Will disposes of such property.

The standard for “testamentary capacity” is not as high as general competency. A person need only understand the nature and extent of his assets and the natural objects of his bounty (his family). Lack of capacity can be the result of the natural aging process or the result of a person being on a substantial amount of medication, e.g. heavy morphine to treat end-stage cancer. Lack of capacity litigation relies on medical records and the irrational conduct of the testator prior to executing the Will.

In addition to Will contests, probate litigation can involve:

  1. Will Construction – sometimes Wills are vague; beneficiaries have died or disappeared; or the document does not properly dispose of the entire estate. In these instances, the assistance of the court is sought to determine how a decedent’s estate should be distributed.
  2. Determination of Heirs – sometimes a decedent leaves no will and had little contact with his family. The heirs (as defined by the intestacy statutes, Fla. Stat. §§732.101 - 111) need to be determined by the court.  Sometimes, the decedent has formerly unacknowledged children who wish to prove paternity/maternity and make a claim in the estate.
  3. Elective Share Litigation– the surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate. In general terms, absent a valid pre-marital agreement, a surviving spouse has the right to claim 30% of the elective estate.
  4. Breach of Fiduciary Duty – a person appointed by the court to administer a decedent’s estate has duties and responsibilities with which they are charged. Failure to properly administer an estate, either by overt act or by omission, can be actionable. Sometimes the remedy sought is removal of the fiduciary.  When funds have been wasted or mismanaged or excessive fees have been taken, the remedy can be a surcharge action. For a list of the duties and powers of the personal representative, see Florida Statute §733.601-619.
  5. Removal of Fiduciary – a fiduciary may be removed by the court for cause.
  6. Surcharge Action - the purpose of a surcharge against a fiduciary is to restore the losses sustained by the fiduciary’s breach of duty.
  7. Accounting – beneficiaries have the right to an accounting. If one has not been provided, then a beneficiary may seek the court’s assistance to compel the fiduciary to account for the estate assets. If an accounting has been provided and is objectionable for any reason, then the beneficiary may object to the accounting.

If you believe you may have a Florida Probate Litigation matter and need to speak to a Florida Probate Litigation Attorney, please call the lawyers at Adrian Philip Thomas, P.A. to schedule your free initial consultation. 

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Toll Free 1-800-249-8125

Phone: (954) 764-7273
Fax: (954) 764-7274

Las Olas Square
515 East Las Olas Blvd, Suite 1050
Fort Lauderdale, FL 33301

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