Experienced Florida Estate And Probate Litigation Lawyers
The attorneys of The Coleman Law Firm, PLLC, represent beneficiaries and personal representatives in all courts of Florida dealing with probate litigation and estate litigation matters.
Our firm has more than 30 years of experience representing beneficiaries, personal representatives, creditors or other interested persons in Florida will contest cases typically on an hourly basis. In some situations, we will undertake representation of a beneficiary or others involved in a will contest or any other probate litigation on a contingency fee basis, or any other alternative billing arrangement.
A will contest is a form of probate litigation challenging the admission of a last will and testament to probate or seeking to revoke the probate of a will that is already pending before the Florida 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 or thought they deserved. Challenging the validity of a will is not contingent on the elements of “fairness” or the reasonableness of the will’s 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 last will and testament can also be attacked on the basis that a person lacked mental capacity (senile, dementia, delusional, unsound mind) at the time the estate planning 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. Those elements of probate litigation are sometimes difficult to establish. We, as experienced estate litigation attorneys in Florida have met the evidentiary burden for establishing the invalidity, or validity, of wills many times. We can help you do the same if you find yourself needing a probate litigation attorney in Florida.
If the last will and testament is invalidated by the Florida probate court, the probate 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 (the legal doctrine of dependent relative revocation), depending on the specific facts and circumstances. If you are a beneficiary of the will, you want to make sure that you don’t get the whole will thrown out by the court, that could cause you to lose your beneficial interest in the probate estate. Experienced probate litigation lawyers can help make sure that doesn’t happen to you.
When a Florida probate litigation attorney or estate litigation lawyer on behalf of the client files with the Florida probate court an objection to the last will and testament being probated, or produces a different last will and testament, what is known as a “will contest” has begun. Will contests are not rare. Even though few people are successful at challenging a last will and testament, such contests can be very costly and create substantial delays in the completion of the Florida 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 last will and testament. To have the right to contest a will in a Florida probate court a person must have legally recognized “standing” to object. Our experience probate litigation attorneys will help you determine early on in the litigation process whether you meet that standing requirement.
A person must have legal “standing” to contest a last will and testament under Florida probate law. 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 her children would benefit more from her assets, would have legal standing hire a Florida probate litigation lawyer or Florida estate litigation attorney to initiate a “will contest.” Or, should a last will and testament 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 Florida 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 last will and testament.
The filing of a will contest in Florida probate court by a Florida probate litigation attorney or estate litigation lawyer, sometimes is directed at removing the personal representative (executor) appointed by the last will and testament, in an effort to have a different person or trust company serve as Personal Representative for the estate administration, or as a trustee of trusts created by the last will and testament.
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 the Florida probate court within a certain amount of time after receiving notice of the death or petition to admit the will to probate.
If you need a Florida probate lawyer, for a will contest in Jacksonville, Duval County, or any where in Florida, call us toll-free at (866) 510-9099.
The most common challenges to a last will and testament through probate litigation or estate litigation include:
(1) The last will and testament were not properly written, signed or witnessed, according to the Florida statutory requirements
Lack of Proper Formalities. Proper execution of a last will and testament requires that the will be signed by the testator and witnessed by two unrelated witnesses, who also sign the last will and testament. A last will and testament can be contested through a probate litigation attorney or estate litigation lawyer on the basis that it was not properly drafted, signed or witnessed in accordance with the applicable requirements of Florida law.
(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 last will and testament and to understand the nature of his or her estate assets and the people to whom the estate assets are going to be distributed. A last will and testament can be declared void if lack of capacity can be proven. Typically, incompetence is established through a prior medical diagnosis of dementia, senility, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the deceased around the time the last will and testament was executed.
If you need a Florida probate attorney to represent you in a case concerning lack of capacity in a Florida probate court please call us toll-free at (866) 510-9099.
What is incapacity or lack of capacity?
(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 adviser 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 last will and testament. 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 Florida 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 litigation lawyers and estate litigation attorneys at The Coleman Law Firm can represent beneficiaries, creditors and personal representatives of probate estates with the following issues:
a. Failure of the personal representative of the Florida probate estate 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 and conflicts of interest
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
If you need a Florida probate attorney to represent you in a claim for breach of fiduciary duty in a Florida probate court, please call us toll-free at (866) 510-9099.
(6) Elective share;
Florida Elective 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 total of probate and nonprobate 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. The augmented estate includes not only the decedent’s assets in the probate estate, but also all assets owned by a revocable living trust established by the decedent, as well as certain other assets that include gifts or other estate assets transferred within a year of the decedent’s death, and certain other assets.
Most surviving spouses can benefit from hiring a Florida probate lawyer or estates attorney 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 spousal elective 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, or any other probate litigation or estate litigation, in Florida is short, typically 90 days after the Notice of Administration of the Florida probate estate has been provided by the Personal Representative. Therefore, prompt action is required to file a lawsuit to recover your lost inheritance.
Not only can a will be challenged on these grounds, but a trust can also be challenged for the same reasons, as well as the probate of a real estate deed or a change of a beneficiary designation on a financial account, annuity or life insurance policy. There are many situations where the undue influencer will cajole, trick or persuade a weakened person to sign over valuable real estate, a bank account, or any other property directly to the influencer, with the hope that they will have left the scene before the wrongdoing in the estate 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 Florida guardianship, which will allow the guardian to use the probate court’s jurisdiction to reclaim estate assets that were fraudulently removed. If an estate planning document was also changed because of undue influence, the guardianship will allow evidence to be collected for use at a subsequent will contest proceeding or other estate litigation.
If you need a probate litigation lawyer in Florida to represent you in a litigation matter in a probate court in Florida, please call us toll-free at (866) 510-9099.
Florida Probate And Estate Litigation
Florida probate litigation and 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 litigation or estate litigation may include opening a Florida probate estate to file a wrongful death lawsuit against those responsible for the death of the decedent. Probate litigation and 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 litigation or 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 refused to turn over property belonging to the probate estate. Typically, such probate litigation involves someone other than the heirs and beneficiaries of the Florida probate estate, though estate heirs or beneficiaries may be involved.
Florida probate litigation and estate litigation also includes situations where third parties may file a lawsuit against the Florida 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 or estate litigation involved, the probate litigation lawyers and estate litigation attorneys with The Coleman Law Firm are experienced in handling such estate and probate 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 estate litigation attorney in Florida, please call (904) 688-3324, or toll-free at (866) 510-9099, or contact us by email at [email protected] to see how we can be of assistance to you.