Probate Litigation

Probate litigation in Florida involves legal disputes that arise relating generally to age, disability and death.

Some court battles involve decision-making rights for others, including guardianships and conservatorships, as well as conflicts over patient advocate designations, living wills and powers of attorney. It can also involve clashes over an estate of a decedent (someone who has died). These can involve wills, trusts, estates, joint bank accounts, life insurance, disputes over assets, inheritance, gifts and other discord that can arise after someone dies.

At The Ansara Law Firm, our Fort Lauderdale probate litigation lawyer srecognize these skirmishes are often sensitive and emotional disputes among family members and loved ones. Still, the outcome often depends on statutory language and Florida case law precedent, as well as the experience of your probate lawyer.

Probate litigation can refer to many different scenarios. Some examples that commonly arise:

• Lawsuits regarding the construction or wording or wills and trusts;
• Disputes over whether an individual should have an appointed guardian if there is no designated power of attorney;
• Conflict over the validity of a will;
• Modification or reformation of trusts;
• Demands to terminate a trust because the purpose has become impracticable;
• Lawsuits by beneficiaries of an estate or trust against a fiduciary for allegedly not acting in accordance with a legal document or the law.

Lack of prenuptial agreements (particularly when there are multiple marriages), wills or carefully constructed trusts can lead to confusion when there are disagreements about how to define what’s “fair.” Sibling rivalries, second marriages and families with a great deal of dysfunction or discord may be more prone to these types of legal battles, but that’s not always the case.

We can help clients grappling with:

• Breach of Fiduciary Duty
• Tortious Interference With an Expectancy
• Probate Administration: Formal vs. Summary
• Undue Influence
• Guardianship Litigation
• Ancillary Probate Administration
• Florida Power of Attorney
• Trust Accounting
• Rights of Surviving Spouses
• Homestead Rights
• Duty of Trustee/ Probate Litigation.

For more information, you can visit our Florida Probate FAQ.

Areas of guardianship, trust, estate and probate litigation are always evolving in Florida. Our dedicated probate litigation attorneys can help Fort Lauderdale residents with a wide variety of disputes.

What Is Probate?

Probate is a legal process that takes place after someone dies. Florida’s Probate Code, Chapters 731 through 735 of Florida Statutes, notes that the “estate” is the property of decedent that is subject to administration.

• F.S. Chapter 731 – Establishes general provisions of the probate code, and offers definitions on everything from who is a “beneficiary” to what is a “will.”
• F.S. Chapter 732 – Explains intestate succession wills, rights of spouses and children, exempt property, contractual arrangements and production of wills.
• F.S. Chapter 733 – Delves into administration of estates, qualifications of personal representatives (as well as their duties and powers), fiduciary bonds, curators and claims made by creditors.
• F.S. Chapter 734 – Explains guidelines for foreign personal representatives.
• F.S. Chapter 735 – Explains how to handle small estates, covers summary administration and disposition of personal property without administration.

Historically, probate simply involved the judicial process of proving the validity of one’s Last Will & Testament. That’s still the case today, but probate involves a lot more than simply proving the veracity of one’s will. Probate involves giving the court jurisdiction over the property/ individual in question. Proper jurisdiction is typically the state and county wherein decedent lived or died, or else in the county where decedent owned real property.

Courts overseeing probate will supervise the procedure of identifying and collecting decedent’s assets, paying applicable debts and then distributing the rest to rightful beneficiaries.

A probate attorney can help you:

• Contact decedent’s creditors;
• Potentially help avoid probate litigation;
• Prepare and file taxes;
• Assess elective share benefits, family allowances and tax exempt property;
• Distribute property and other assets;
• Prepare financial accounting.

Not every estate requires a probate. In cases where property was jointly owned by someone who is surviving, that property belongs to the survivor, and thus wouldn’t need to be litigated in probate. However, in cases where decedent is the sole owner of an assets, probate is the process that helps determine who has the rights to that property. Also, some disputes arise when decedent did not realize certain accounts or properties were “joint.” A probate litigation lawyer at our Fort Lauderdale firm can help you navigate these disputes. For instance, let’s say an elderly woman has a will that splits her estate into equal assets among her four children, but adds just one child who lives nearest to the bank account. That account is probably now “joint” property of that one child, and would go directly to that child without the probate process.

Objecting to Probate

Probate litigation often involves situations wherein someone objects to probate. This can include allegations of:

• Fraud
• Duress or undue influence;
• Mistake;
• Fraud;
• Will signed when decedent lacked mental capacity;
• Defects in the will.

It should be noted that per F.S. 732.518, no one can contest a will until after the death of the testator (person who has written and executed a last will and testament in force at the time of his or her death).

Individuals in probate can object to:

• Who the presumed heirs are;
• The surviving spouse’s elective share;
• Inheritance to children born out-of-wedlock;
• Appointment of the estate fiduciary, arguing the individual is not qualified per F.S. 733.302 (i.e., under 18, is mentally/ physically unable to perform duties, is a convicted felon, is not a family member OR a Florida resident).

In cases where there is no will, Florida law stipulates it will be the heirs (spouse and descendants) who inherit probate assets.

Guardianship Rights

F.S. 744.3201 gives any adult the right to petition the court to make a determination on the incapacity of another. To discourage abuse of this provision, the law allows costs and attorney’s fees to be imposed on petitioner if the court deems the filing was in bad faith.

The petitioner must provide their identity, sign the petition under oath and identify the alleged incapacitated person. One must also stipulate the grounds for belief the person should be examined, and identify the specific rights the subject is allegedly incapable of exercising (i.e., to drive, to marry, to vote, to enter contracts, etc.).

From there, the court will appoint an attorney to represent the individual and then set an incapacity hearing. To find the person needs guardianship the court will need to determine – by clear and convincing evidence – that the person in question is incapacitated and there is no alternative to guardianship.

Those who hold guardianship may assist with:

• Creating a financial inventory;
• Creating a restricted depository;
• Financial management for the “ward”;
• Creating monthly budget;
• Preparing and filing taxes;
• Choosing medical care and residence.

Temporary guardianship may be granted on an emergency basis in the event of a risk of imminent danger to subject’s physical or mental health or safety.

Why You Need a Probate Litigation Attorney

Our Fort Lauderdale probate litigation attorneys do want to make clear that while this is a complex area of law and issues are wide-ranging, the one element they all have in common is time. That is, there are tight deadlines in the probate process to file objections, and they law doesn’t tend to reward those who simply sit on their rights.

Although there is no law that says you must have an attorney through these proceedings, it is usually imperative, given the complexity of the legal matters, as well as the value of what is at stake.

Our team is committed to helping you secure a favorable outcome.

Contact the Fort Lauderdale Lawyers at The Ansara Law Firm at (954) 761-3641 or by email. Serving Broward, Miami-Dade and Palm Beach Counties.

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