Broward Injury Lawyer Blog
Our Fort Lauderderdale probate lawyers are occasionally asked by individuals whether they are too late to contest a will or take action if an estate was mistakenly or fraudulently administered. The answer will depend on the exact circumstances of the situation, but know that the time window for asserting a challenge is typically very short.
In many cases, to contest a will in Florida, you will have just three months (90 days) from the time you receive a document called a “Notice of Administration.” This document is most often served on surviving spouses, beneficiaries trustees (if there is a trust) or those who may be entitled to exempt property under state law. This is outlined in F.S. 733.212(3). Failure to file an objection within that three month window means those claims will thereafter be forever barred. This usually applies to cases pertaining to will contests challenging the validity on the basis of lacking mental capacity or undue influence.
Further, all objections to a will’s validity – for any reason – must be filed no later than one year of the entry of an order of final discharge of the personal representative or one year after service of notice of administration. The only circumstances under which this timeline can be extended is if you assert misconduct, fraud or misrepresentation.
What if the Estate Wasn’t Administered Fairly?
Fair administration of an estate is one of the key duties of the personal representative. There may be numerous heirs, but a personal representative can be designated by the court to ensure decedent’s intent is followed. There have been numerous probate litigation cases in Florida where a personal representative does not properly administer the estate, and other beneficiaries or heirs don’t learn until later they were deprived of their rightful share of total assets.
Florida Rule of Civil Procedure 1.54(b) is a provision that outlines relief one can obtain from final judgments, decrees or orders when there are:
- Mistakes
- Inadvertence
- Excusable neglect
- Newly-discovered evidence
- Fraud
This provision states that a motion for relief from a final judgment, decree or order needs to be filed “within a reasonable time” and only for the aforementioned reasons and within a time frame that is not more than one year after the judgment was entered. Findings of fraud upon the court may in some cases allow for a slightly longer timeline.
“Fraud upon the court” can include cases where a personal representative made the required Petition for Discharge asserting the estate has been fully and properly administered – when in fact that was not true and they knew it. Those cases may allow for a statute of limitations that extends beyond one year, but it will depend on the exact circumstances and individual facts of the case, but that will depend on the exact circumstances of the individual facts of the case.
F.S. 733.903 under the Florida Probate Code states the final settlement of an estate and discharge of a personal representative won’t prevent further administration of the estate. However, the discharge order won’t be revoked simply because someone found a will or discovered a new will at a later time (assuming no fraud was involved).
Tight Timelines Mean Florida Probate Lawyers Should Be Contacted Immediately
Fort Lauderdale probate lawyers can explain the reason for these stringent timelines is that legislators did not intend to reward anyone for sitting on their rights. That means if you want to avail yourself of them, you need to act very quickly.
If you aren’t 100 percent certain whether there was an error or someone intentionally acted to subvert the testator’s intention, it’s a smart idea to consult with an attorney just to explore your options.
Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Additional Resources:
Florida Rule of Civil Procedure 1.54(b)
More Blog Entries:
Florida Early Inheritance Might Lower Heir’s Tax Burden, But May Leave Benefactor Vulnerable, Jan. 15, 2019, Fort Lauderdale Probate Litigation Attorney Blog
