Florida Probate Litigation

The Jacksonville Florida probate lawyers and attorneys at The Coleman Law Firm, PLLC represent beneficiaries and personal representatives in all courts of Florida dealing with probate litigation matters.

The firm represents beneficiaries, personal representatives, creditors, or other interested persons in Florida will contest cases typically on an hourly basis. In some situations probate litigation attorneys with The Coleman Law Firm will undertake representation of a beneficiary or others involved in a will contest or other probate litigation on a contingency fee basis, or other alternative billing arrangement.  Please contact us to learn more.

There are two major types of litigation in probate, one is a will contest and the other involves estate litigation.

Will Contests

A Will contest is a form of probate litigation challenging the admission of a Will to probate or seeking to revoke the probate of a Will that is already pending before the probate court. A person cannot challenge the validity of a Will simply because he or she does not like its provisions, or did not, in their opinion, get what they wanted. Challenging the validity of a Will is not contingent on the elements of "fairness" or the reasonableness of its provisions or on the timing of distributions from the probate estate (such as if you prefer an immediate distribution, but the Will provides for you to receive your distribution in multiple distributions at several year intervals).

A Will is likely to be attacked on the basis that a person lacked mental capacity (senile, dementia, delusional, unsound mind) at the time the documents were created, that the Will maker was subjected to fraud, coercion or undue influence during its creation and implementation, that there are ambiguities in the document, or the Will is a forgery or does not conform to legal requirements, such as the manner in which it was signed, or the number and nature of the witnesses.

If the Will is invalidated by the Florida probate court, the court may disallow only that part of the Will that was challenged or it could invalidate the entire Will.  The assets of the probate estate might in that case be distributed as if the person died without a Will (intestacy), or pursuant to the distribution provisions of a prior Will, depending on the specific facts and circumstances.

When someone files an objection to the Will being probated, or produces a different Will, what is known as a "Will contest" has begun. Will contests are not rare.  Even though few people are successful challenging a will, such contests can be extraordinarily costly and create substantial delays in the completion of the probate of the estate.

You can not legally contest a Will just because you don't think the results provided by the will are not fair or are unreasonable. For example, if you feel your recently deceased next door neighbor's out of state children are awful people who didn't give her proper respect and they do not deserve to receive any assets from her estate, that will not provide a sufficient basis to challenge her will. To have the right to contest a Will in Florida probate court a person must have legally recognized "standing" to object.

A person must have legal “standing” to contest a Will.  A child who was disinherited by the Will of an angry parent, or perhaps by a kindly parent who felt that the local charity rather than his children would benefit more from his assets, would have legal standing to initiate a "Will contest". Or, should a Will give one sibling a disproportionately large share of a parent's estate and the other child, or children, a disproportionately small share, the ones receiving less than their proportionate share have standing to challenge the will in probate court. Another example would be if a later Will is less favorable to a beneficiary than an earlier Will, or no Will at all, then that person has legal standing to challenge the later Will.

The filing of a Will contest in probate court sometimes is directed at removing the personal representative (executor) appointed by the Will, in an effort to have a different person or trust company serve as Personal Representative for the estate, or as a trustee of Trusts created by the Will.

Most of the challenges to invalidate a Will are filed by potential heirs or beneficiaries who were entitled to little or nothing from the terms of the Will that is being probated. Will challenges must be filed in probate court within a certain amount of time after receiving notice of the death or petition to admit the Will to probate.

The most common challenges to a Will include:

     (1)     the Will was not properly written, signed or witnessed, according to the Florida statutory requirements

Lack of Proper Formalities. Proper execution of a will requires that the will be signed by the testator and witnessed by two witnesses, who also sign the will. A will can be contested on the grounds that it was not properly drafted, signed, or witnessed in accordance with the applicable requirements. 

     (2)     the decedent lacked mental capacity at the time the Will was signed

Lack of Capacity. Under Florida probate law, a testator is required to have mental competency to make a will and to understand the nature of his or her assets and the people to whom the assets are going to be distributed. A will can be declared void if lack of capacity can be proven. Typically, incompetence is established through a prior medical diagnosis of dementia, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the deceased around the time the will was executed.

     (3)     there was fraud, duress or undue influence exercised by someone who had a special relationship with the deceased

Undue Influence. Undue influence occurs when the testator is compelled or coerced to execute a will as a result of improper pressure exerted on him or her, typically by a relative, friend, trusted advisor, or health care worker. In many cases, the undue influencer will upset a long established estate plan where the bulk of the probate estate was to pass to the direct descendants or other close relatives of the decedent. Some undue influencers are new friends or acquaintances of the decedent who “befriend” the decedent in the last months or years of life, typically after the decedent has suffered some decline in mental ability. In other situations, one child of the decedent, often a caregiver, will coerce the decedent to write the other children out of the will. Undue influencers can also be health care workers or live in aides who implicitly or explicitly threaten to withhold care unless the estate plan is changed in favor of the health care worker.

     (4)     the Will was a forgery

     (5)     breach of fiduciary duty

Breach of Fiduciary Duty. The personal representative of a probate estate owes the beneficiaries of the estate certain fiduciary duties of honesty, prudence, and loyalty. When those duties are violated by a personal representative, a bequest may be put in jeopardy. The Jacksonville, Florida probate lawyers and attorneys at The Coleman Law Firm can represent beneficiaries and personal representatives with the following issues:

     a.         Failure to follow Florida Probate Code, Rules of Probate Procedure, or an order of the Florida probate court

     b.         Probate Fraud

     c.         Improper investments

     d.         Self dealing

     e.         Excessive compensation

      f.        When the personal representative’s negligence or probate fraud results in a financial loss to the probate estate, the probate court can remedy the situation through a monetary award against the personal representative or others involved in the wrongdoing. The Florida probate court can also remove the personal representative if cause can be shown.

     (6)    elective share

FloridaElective Share.  The Florida elective share provides surviving spouses with a portion of a deceased spouse’s estate according to a detailed formula, based on the probate and non-probate assets of the deceased. If the surviving spouses is displeased with the inheritance created by the estate plan, the surviving spouse can instead take the Florida elective share, if the election is made in a timely manner. Under Florida law, the elective share is 30% of the augmented estate.

Most surviving spouses can benefit from hiring a Florida probate lawyer to ensure that the Florida elective share is computed properly and distributed according to Florida law.

The surviving spouse has 6 months from the receipt of the probate estate's notice of administration to make the Florida elective share election. Once the election is made, the personal representative of the Florida probate estate is required to prepare and file the elective estate inventory, which is filed with the Florida probate court.

The time for filing a will contest in Florida is short, typically 90 days after the Notice of Administration has been provided by the Personal Representative. Therefore, prompt action is required to bring your lost inheritance back to life.

Not just a will can be challenged under these grounds. A trust can be challenged for the same reasons, as well as a real estate deed or a beneficiary designation on a financial account. There are many situations where the undue influencer will trick or persuade a weakened person to sign over valuable real estate, a bank account, or other property directly to the influencer, in the hope that they will have left the scene before the wrongdoing can be discovered. Sometimes, the undue influencer will be added as a beneficiary on bank accounts in place of the heirs to whom the decedent intended the account to pass. If the wrongdoing is discovered prior to the victim's passing, a common way for a loved one to start to clean up the situation will be to create a guardianship, which will allow the guardian to use the probate court's jurisdiction to reclaim assets that were fraudulently removed. If an estate plan was also changed because of undue influence, the guardianship will also allow evidence to be collected for use at a subsequent will contest proceeding.

Florida Probate Estate Litigation

Florida probate estate litigation arises when a lawsuit is required to be filed on behalf of the decedent or the decedent's probate estate or heirs, or when a third party files suit against the probate estate.

Florida probate estate litigation may include opening a probate estate to file a wrongful death lawsuit against those responsible for the death of the decedent. Probate estate litigation can also include situations where the heirs, family members and beneficiaries are not disputing what the decedent did with his or her assets through the Will or trust; instead, the probate estate litigation may be a lawsuit against third parties who may be indebted to the decedent, who violated the terms of a contract with the decedent, or who refuse to turn over property belonging to the probate estate.  Typcially, such probate litigation involves someone other than the heirs and beneficiaries of the probate estate, though heirs or beneficiaries may be involved.

Florida probate estate litigation also includes situations where third parties may file suit against the probate estate for debts the decedent owed to the third parties, or if the decedent may have caused injury to another, or breached his contractual duties to another.

Regardless of the type of probate litigation involved, the probate lawyers and attorneys with The Coleman Law Firm are experienced in handling such litigation and are available to assist you with your contested probate matter in Florida, and in particular northeast Florida.  If you need a probate litigation lawyer or attorney in Florida, please contact us to see how we can be of assistance to you.

The Jacksonville, Florida probate litigation lawyers and attorneys with the Coleman Law Firm offer their services as estate planning, probate, elder law, Medicaid planning, asset protection and guardianship lawyers and attorneys primarily in Northeast Florida including the following counties, towns, and cities:  Duval County - Jacksonville, Jacksonville Beach, Atlantic Beach, Neptune Beach; St. Johns County - St. Augustine, Ponte Vedra Beach, Nocatee, St. Augustine Beach; Clay County - Orange Park, Middleburg, Green Cove Springs; Nassau County - Amelia Island, Fernandina Beach, Yulee, Callahan; Flagler County - Flagler Beach, Palm Coast, Bunnell; Baker County - Macclenney, Glen St. Mary; Putnam County - Palatka, Interlachen; Columbia County - Lake City, Fort White; and in other parts of Florida as requested or necessary.