Practice Areas
- Probate
Probate is the legal process by which a person’s debts are paid and assets owned by the decedent are distributed upon death. Sometimes a will is involved, sometimes not. While the probate matter may involve oversight by a Florida court, there need not be any formal lawsuit involved, where a claimant is alleging that monetary damages or other relief is due him/her under Florida law. If controversies culminate in formal lawsuits being filed, they will involve either estate litigation or probate litigation.
What is probate litigation?
When a deceased person’s Last Will and Testament is offered for probate, there are many requirements placed upon the probate process by Florida law. Creditors and heirs are all accorded various rights, privileges and limitations that must be strictly followed. The will itself is available for review, and not everyone involved may be satisfied of the result when the provisions of the will are read in conjunction with the legal mandates.
Probate litigation often involves a will contest. In Florida, probate litigation is one of the most hotly-contested areas of the law, used by surviving family members to correct an array of injustices.
Probate litigation is the broad concept of challenging:
1.) the contents of the Last Will and Testament;
2.) a provision of the Last Will and Testament;
3.) the appointment of an executor (Florida law refers to an executor or executrix as a “Personal Representative”; or
4.) the entire document itself.
Challenging a Will in Florida?the Notice of Administration
Usually, Florida probate litigation is first considered by an individual 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 or be forever barred.
The recipient of a Notice of Administration will have a unique situation, and a dispute that may have a variety of legal bases (e.g., Lack of Mental Capacity, Undue Influence, Duress, Intentional Interference with an Expectancy, and/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 and a very limited time period (usually 20 days) passes, any promises, representations or guarantees to settle any estate dispute or disagreement are worthless and unenforceable unless the parties have entered into an official settlement agreement (written, signed, etc.).
The Types of Probate Litigation
There are several grounds for contesting a decedent’s Last Will & Testament, including:
1.Mistake in Execution, as detailed above, Florida Statute §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 then the document is not a valid will under Florida law.
2.Undue Influence – an undue influence 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.
3.Lack of Testamentary Capacity – a lack of capacity claim is asserted based upon the belief that at the time the Will was executed the person making the Will did not have the requisite mental ability to understand a) the amount and nature of his property; b) the family members and loved ones who would ordinarily receive such property; and c) how the Will disposes of such property.
The probate code and probate process can often seem overwhelming and confusing. The attorneys of Boyette, Cummins & Nailos, PLLC are experienced in the practice of probate law and are able to explain the probate process, probate laws, and probate fees in a comprehesive way to our clients. If you or a loved one have any questions regarding Probate Law, please call or email the law firm of Boyette, Cummins, & Nailos today for your free consultation.
