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In Florida, probate litigation is one of the most hotly contested areas of the law. Probate is the legal process by which a person’s debts are paid and assets owned by the decedent are distributed upon death. Probate litigation frequently arises in the context of a Will contest. When a decedent has created a Last Will and Testament and it is offered for probate, Florida law grants creditors and heirs various rights, privileges and limitations that must be strictly followed.
Usually, Florida probate litigation is first considered by a client when they receive a Notice of Administration alerting them that an objection to the probate proceedings must be commenced within a certain period of time or be forever barred. Probate litigation is the broad concept of challenging the contents of the Last Will and Testament: a provision of the Last Will and Testament; the appointment of an executor; or the entire document itself. The facts of each dispute will define the exact cause of action that needs to be prosecuted or defended.
One should never rely on a promise to “even-out” the estate or “take care of it” soon if served with a Notice of Administration. Once the very limited time period passes, any promises, representations or guarantees to settle any estate dispute or disagreement may become worthless and unenforceable unless an attorney has entered into an official settlement agreement.
Below are certain causes of action available in Florida:
- Will Contest – a Will Contest is a form of litigation conducted in the probate court alleging such things as a Mistake in Execution; Undue Influence or Lack of Testamentary capacity.
- Will Construction – sometimes Wills are vague, beneficiaries have died or disappeared, or the document does not properly dispose of the entire estate. In these instances, the assistance of the court is sought to determine how a decedent’s estate should be distributed.
- Determination of Heirs – sometimes a decedent leaves no Will and had little contact with his family and the heirs need to be determined by the court.
- Elective Share Litigation – the surviving spouse of a person who dies domiciled in Florida may have the right to a share of the elective estate.
- Breach of Fiduciary Duty – a person hired by the decedent or appointed by the courts to administer a decedent’s estate has duties and responsibilities with which they are charged. Failure to properly administer an estate can be actionable.
- Removal of Fiduciary –a fiduciary may be removed by the court for cause.
- Surcharge Action – the purpose of a surcharge action against a fiduciary is to restore the losses sustained by the fiduciary’s breach of duty.
- Accounting – Beneficiaries may have the right to an accounting. If one has not been provided, then a beneficiary may seek the court’s assistance to compel the fiduciary to account for the estate’s assets. If an accounting has been provided and is objectionable for any reason, then the beneficiary may object to the accounting.
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