Probate Litigation

Florida Probate Litigation Attorneys

Knowledgeable Counsel, Aggressive Representation

Probate is the legal process in which a person's debts are paid and their assets are distributed after death. Unfortunately, adversarial matters arise in probate that requires the filing of a formal lawsuit referred to as estate litigation or probate litigation.

There are many requirements placed upon the probate process by Florida law when a deceased person’s will is offered for probate. Creditors and heirs are all accorded various rights, privileges, and limitations that must be strictly followed. Although will itself is available for review, sometimes, not everyone involved is satisfied with the result, which can lead to a will contest by surviving family members and potential beneficiaries.

Notice of Administration

Probate litigation is usually first considered by individuals 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.

The recipient of a Notice of Administration will be in a unique situation to dispute on a variety of legal bases, such as lack of mental capacity, undue influence, 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, they have a limited time period (usually 20 days) to settle any promises, representations, or guarantees regarding the estate dispute or disagreement, otherwise, they become worthless and unenforceable unless the parties have entered into an official settlement agreement.

Are There Different Types of Probate Litigation?

There are several grounds for contesting a decedent’s will, including:

  • Mistake in Execution: F.S.§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, the document is not a valid will under Florida law.
  • Undue Influence: This type of 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.
  • Lack of Testamentary Capacity: This claim is asserted based upon the belief that at the time the will was executed, its creator did not have the requisite mental ability to understand the amount and nature of their property, the family members and loved ones who would ordinarily receive such property, and 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 their assets and the natural objects of their bounty. 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. Lack of capacity litigation relies on medical records and the irrational conduct of the testator prior to executing the will.

Probate Litigation Cases We Take On

Please get in touch with Adrian Philip Thomas, P.A., if you need assistance with any of the following probate litigation matters:

  • 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.
  • Determination of Heirs: If a decedent leaves no will and had little contact with their family, the heirs need to be determined by the court. Unacknowledged children who wish to prove paternity/maternity can also attempt to claim an estate.
  • 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, absent a valid pre-marital agreement, a surviving spouse has the right to claim 30% of the elective estate.
  • 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. Fiduciaries can be removed by the court for cause.
  • Accounting: Beneficiaries have the right to an accounting. If one has not been provided, then a beneficiary can seek the court’s assistance to compel the fiduciary to account for the estate assets. If accounting has been provided and is objectionable for any reason, then the beneficiary can object to the accounting.

Our Legal Team Can Help You Pursue Justice Through Litigation

The dedicated attorneys at Adrian Philip Thomas, P.A. understand that while clients are best served by first attempting to negotiate an honest, fair, and prompt resolution to a dispute, it often becomes necessary for us to litigate in order to preserve and protect their rights, assets, or inheritance. We have been serving clients in Florida since 2002, and we are prepared to lend our breadth of experience to assist with your complicated legal matters.

To request a complimentary case consultation with one of our probate litigators, please give us a call today at (800) 776-3103.

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