The death of a loved one is a stressful time. You may have to spend the next several months – or longer – figuring out funeral costs, slogging through legal procedures, and dealing with possible emotional trauma.
When someone dies, his or her assets have to be distributed. Probate is the process of paying a deceased person’s debts and dividing his or her assets. If there is a will, it will be used to distribute those assets to the family members, friends, and other people or organizations designated. If there are issues with the will or other estate planning tools, probate litigation occurs.
What is probate litigation? At its most basic, it’s where someone disagrees with the way a decedent’s assets are being distributed and sues to have things changed.
Below we are going to delve into some of the specific types of probate litigation that may occur.
Contesting a Last Will and Testament. The type of probate litigation that most people are familiar with is a will contest.
Life comes with many different changes, and wills are sometimes not updated accordingly. When a person dies, his or her loved ones may have issues with the provisions laid out in their will. When this happens, the will can be contested. Some of the reasons for this may include:
- Mistakes: If mistakes were made or the execution of the will does not follow Florida law, the will can be contested and reviewed in court.
- Undue Influence: If loved ones believe that a deceased person’s will was not true to the wishes of that person, they can contest the will and attempt to divide assets based on what they believe the person’s true wishes to be.
- Lack of Testamentary Capacity: This claim is made when loved ones believe a deceased person could not fully comprehend the scope or affects of his or her will. Writing a will is not always a simple process, and if loved ones believe a deceased person was confused or unsure of the amount or nature of their assets, they can contest in court for the assets to be divided fairly.
Problems with Will Construction. Sometimes a will is incomplete. Not everyone has the time, desire, or knowledge to complete a will in the manner required by Florida law. If a will has not been written up at all, there will be a Determination of Heirs and assets will be divided amongst them – the state does not have a right to take the assets from the deceased person’s family. But if a will exists but is incomplete or has problems, probate litigation can serve to complete the will so all assets are given to the right people.
Elective Share Litigation. A deceased person’s spouse has the right in Florida to claim 30% of the person’s estate, called an elective share. If the deceased person’s will does not allow for this share, the spouse can file elective share litigation. This share may be disputed if a pre-marital agreement was signed.
Breach of Fiduciary Duties. Fiduciaries are individuals who fulfill different responsibilities to the will and a person’s heirs. If a fiduciary has not fulfilled their responsibilities or has breached the trust of the deceased person, probate litigation can be filed to remove the fiduciary, undo the actions of a fiduciary, or sustain the losses caused by the fiduciary’s negligence. We have elaborated on fiduciary duties and what a breach in duties can mean for probate litigation here.
As you can see, probate litigation can be complex and confusing. It also doesn’t help that it comes at a time that is emotionally stressful for you and your family. Depending on the construction of the will and any issues that arise during probate litigation, it may take months or even years to get every issue settled properly. If you or a loved one need to contest a will, or wish to fight a will contest, contact a trusted Florida probate attorney today.
About the Author:
Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 28 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011, 2012, 2014-1016 in Estate and Trust Litigation, and was selected for inclusion to the Best Lawyers in America in 2016.