Even in the best of circumstances, the death of a loved one tends to be a stressful and traumatic experience to go through. Not only do you have to deal with the loss of this individual in your life, but you may be facing unexpected costs related to medical bills, funeral costs, and so on.
This difficult time can be made even harder if something in your loved one’s will or estate plan surprises you. Maybe you were expecting a certain amount for your inheritance, or to receive a particular asset, but it ends up going to someone else. Perhaps your loved one asked you to serve as personal representative, but the will names someone else.
If you believe that your loved one’s assets are not being distributed according to his or her wishes, you don’t have to simply accept the situation lying down. You can fight back.
How? By engaging in probate litigation.
What Happens to an Estate after Someone Dies
Whether your loved one created a Last Will and Testament or neglected to provide any guidance on their estate at all, it will have to go through probate. This is the process by which a person’s assets are distributed and any remaining valid creditors are paid.
While probate is still ongoing, you have the option to dispute the way your loved one’s assets are being handled. This is called probate litigation, and here we’re going to walk you through the process if you find yourself needing to argue with a decision about your loved one’s estate.
Immediate Actions and Pre-Hearing Notices. When someone passes away, his or her will should be accessed immediately, and as soon as possible, a hearing must be scheduled to begin probate. While waiting for the initial hearing, the nominated executor should alert creditors and beneficiaries that probate will begin so that the process will move more quickly.
This is also very important in regards to litigation, because if you do not receive notice that probate will begin, you may file a will contest at any point while probate is still ongoing. If, however, you do receive a notice, Florida gives you three months to file your contest.
So if you already know that you are doing to disagree with the way your loved one’s estate is distributed, this is the time that you should be seeking out an experienced probate litigation attorney, defining your argument, and collecting supporting evidence.
What do we mean by defining your argument? There are only a few legally justifiable reasons for contesting a will:
Lack of testamentary capacity – either your loved one was a minor and therefore lacked the mental capacity to understand what they were doing, or they created the will under the influence of a debilitating mental condition, drugs, or something else that would have prevented them from fully comprehending the consequences of what they were doing.
Undue influence – someone manipulated your loved one into crafting a will that benefitted them.
Forgery or fraud – the will itself is a fake or has been illegally altered; even the individual who creates a will must follow proper procedures when writing or changing the document.
Another will trumps the one being used – sometimes someone will draft a will only to change it later. As long as both wills were created following proper procedures, the newest will takes precedence.
The will is invalid – either it does not contain the provisions required by the state where the decedent resided, or was not created following specific laws (the presence of witnesses, for example).
If you are going to engage in probate litigation, you need to be able to provide evidence of one of these things.
What if the will hasn’t been submitted yet? It doesn’t matter how long ago your loved one died – as long as their estate hasn’t completed probate, you are still able to challenge their will.
The First Hearing. Probate hearings take place in circuit court, but the personal representative may not be required to attend the hearing. During the first hearing, a judge will look over two things: the validity of the will and the nomination of the personal representative.
At this time, family members can object to the nomination of the personal representative. And if this hearing is the first time you realize that you want to contest your loved one’s will, it’s a good time to start the process we detailed above – getting a lawyer and crafting your case.
Filing a Petition. To contest a will in Florida, you must first file a Petition for the Revocation of Probate with the probate court. Doing this does not remove the chosen personal representative. However, it does prevent him or her from distributing any assets that would otherwise be affected by the contest.
For example, if you believe that you should be entitled to a portion (or a larger portion) of your loved one’s financial accounts, the personal representative would be able to distribute, say, vehicles or real estate, but none of the money tied up in those accounts. If, however, your contest relates to a specific asset, such as a baseball card collection, the representative would only be prevented from distributing that individual asset.
Having Your Contest Decided. Once you file a petition, you and your attorney will need to present your evidence to the court. Based on this, they will decide whether to invalidate the will, as well as which parts should be invalidated. A lack of mental capacity, generally speaking, will lead to the entire will being declared invalid, whereas something like undue influence may have only impacted a single provision.
If the entire will is declared invalid, your loved one’s estate will then be distributed based on Florida’s intestacy rules.
About the Author:
Christopher Q. Wintter is the President of Wintter & Associates, P.A. , a four-lawyer trust and estate firm. Mr. Wintter is a Florida Bar Board-Certified Expert in Trust and Estate Law. 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 Magazine for 2011, 2012, and 2014-2016 in Estate and Trust Litigation, and was selected for inclusion to the Best Lawyers in America in 2016 in the area of Estate and Trust Litigation.