Probate Litigation

The Florida probate litigation lawyer and attorney of The Coleman Law Firm, PLLC, represent beneficiaries and personal representatives in Florida probate courts in Daytona Beach,Volusia County, Florida, and the surrounding communities, in dealing with probate litigation matters and trust litigation matters.  If you need an experienced Daytona Beach, Florida probate lawyer to assist you with a will challenge, or any other probate litigation, please call us toll free at 1-866-510-9099.

The Florida probate litigation lawyer and attorney with The Coleman Law Firm  usually represent heirs, beneficiaries, personal representatives or  estate creditors in will contests cases on an hourly rate fee basis.  In some situations we may undertake representation in a case on a contingency fee basis, or some other alternative billing arrangement.

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

Will Contests

If the Will 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, depending on the specific facts and circumstances.

When someone files an objection in the Florida probate court 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 in Florida probate court, 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 in Florida probate court just because you 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 probate 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 in Florida probate court.  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 probate 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 Will. 

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

If you need the assistance of an experienced probate litigation attorney in the Daytona Beach, Volusia County, Florida area, please call us toll free at 1-866-510-9099.

The most common challenges to a Will include:

(1) the Will was not properly written, signed or witnessed, according to the  Florida probate law 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 Florida probate 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 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;

(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 probate lawyers and attorneys of The Florida Probate Lawyer, PLLC can represent beneficiaries and personal representatives with the following issues:

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

b.         Probate Fraud

c.         Improper investments

d.         Self dealing

e.         Excessive compensation

When the personal representative’s negligence or probate fraud results in a financial loss to the 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;

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 probate and non-probate assets of the deceased. If the surviving spouse 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 probate law, the elective share is 30% of the augmented probate 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 probate 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 probate estate is required to prepare and file the elective estate inventory, which is filed with the court.

The time for making 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 under the same grounds, 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 Florida guardianship, which will allow the guardian to use the Florida probate court's jurisdiction to reclaim assets that were fraudulently removed. If an estate plan was also changed because of undue influence, the Florida guardianship will also allow evidence to be collected for use at a subsequent will contest proceeding in Florida probate court.

Estate Litigation

This material represents general legal advice. Since the law is continually changing, some provisions may be out of date. It is always best to consult an experienced Florida probate litigation lawyer or attorney about your legal rights and responsibilities regarding your particular case.

Legal Notice and Disclaimer.  The materials within this website are for informational purposes only.  This information does not constitute legal advice and should not be relied upon by any individual.  Communication of this information is not intended to create, and receipt does not constitute, the establishment of an attorney-client relationship.  Internet users and readers should not act upon this information without first seeking professional legal counsel for your particular circumstances.  The information on this website is provided only as general information which may or may not reflect the most current legal information.

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Florida Counties and cities in which the probate litigation attorneys and lawyers of The Coleman Law Firm, PLLC offer probate litigation services include Daytona Beach, Ormond  Beach, New Symrna, Deland, and surrounding communities as well as: