If you have started estate planning, you’re most likely doing it for your own peace of mind and to ease the burden on your loved ones after your death. But no matter how much you plan, situations can arise that need to be taken care of.
When you die, regardless of whether you have a will or not, your estate will go through probate. You can read our Guide to Florida Probate that outlines the probate process and the different types of probate administration to help you better understand probate administration.
Most of the matters handled by probate courts are relatively routine. Sometimes, however, certain factors come up during probate that can lead to litigation. These factors are often called “contested matters” and need court action to fix the problem or resolve the dispute.
Let’s look at a few common factors that can lead to probate litigation.
Multiple marriages. Second (or third or fourth) marriages can lead to probate fights among family members and loved ones. Often times, the children of the deceased may try to make claims on property and assets they believe they have a right to, even though the new spouse also has a claim to that property.
For this reason, if you get married again, it’s especially important to create the necessary documents – pre- or post-marital agreements – that establish the proper ownership of both separate and marital property between the surviving spouse and children from the first marriage.
Also, upon a second marriage, if you already have an executed will or any other estate planning documents in place, you might want to modify them to ensure all of your beneficiaries receive what’s rightfully theirs.
Nonstandard estate plan. If you create a nonstandard estate plan, the chance of probate litigation increases. Some examples of nonstandard estate plans may include:
- Excluding one child out of your will
- Treating all of your children differently
- Establishing overly detailed trusts to “control from the grave”
- Making gifts to mistresses
Even if you have a good reason for doing this, your loved ones might not be so happy about your choices and decide to contest.
Personal representative issues. Your personal representative is responsible for handling all of your estate’s probate administration, which is a large time and effort commitment. For this reason, it’s important to designate a trustworthy, reliable, and mature personal representative who will carry out his or her duties appropriately.
If your personal representative can’t handle the position and breaches his fiduciary duty, their conduct can lead to probate litigation. Some examples of poor personal representative conduct include:
- Not communicating well with the beneficiaries
- Not following the instructions of his advising attorney
- Not keeping track of expenses
- Not being objective
- Being disorganized
- Making poor decisions and financial transaction
- Being dishonest
Poor estate planning. When we make an estate plan, we often have the best intentions. But that doesn’t mean we have the best execution. Since estate planning documents have to be valid according to Florida law, one little mistake can invalidate everything and allow for probate litigation to take place.
Although many people might try to put an estate plan together on their own, an experienced Florida estate planning attorney can be extremely valuable in making sure everything is valid and properly executed according to Florida law. Additionally, estate planning attorneys have the knowledge to be able to advise you on the best possible options for your unique estate planning needs. With the help of an attorney, you can avoid probate litigation and the added stress on your family and loved ones.
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.