Unfortunately, sometimes things go wrong in probate and beneficiaries feel there is something wrong with their loved one’s will or the distributions planned to be made during probate. There is a process in place for contesting these issues during the probate proceeding. There are several common issues involved in probate litigation including a will contest, will construction, determination of heirs, elective share litigation, breach of fiduciary duty and removal of fiduciary, surcharge actions, and accounting issues.
A will contest is the most common. It occurs when an interested party challenges the validity of a will or if a provision in the will. Common issues to challenge include:
To contest the will during probate, the interested party needs to file a petition with the court asking the will be deemed invalid in whole or in part or that it be revoked. The party may need substantive proof to go with the claim such as a medical opinion or sworn statements. The court will then make a decision either agreeing or disagreeing with the petition. The will may be deemed valid and probate continues as it was originally, deemed invalid in whole or in part.
What you should know about will contests
Many people have mixed feelings about initiating a will contest, often due to mistaken beliefs about the process. Potential beneficiaries should not be worried about issues such as losing their bequest due to a no content provision because Florida law does not allow those, nor should the perception that will contests never work.
There are aspects of a will content which are challenging that an attorney can review with you. Depending on the type of challenge it may become costly, involving research and expert opinions. The estate will also incur legal fees in the contest which may deplete the value and the amount available to beneficiaries. And, the potential personal cost should not be overlooked – whether you win or lose, these types of proceedings often have a negative impact on the relationship among survivors.
Other types of probate litigation:
A will construction action is undertaken when the will is vague, a beneficiary has died or untraceable, and if the will does not dispose of everything. A beneficiary initiates this action for the court to determine how the estate should be distributed.
Similarly, a Determination of Heirs is needed where the court needs to determine who should inherit from the decedent. It often involves unacknowledged children or relatives who need to scientifically prove their relationship and make a claim in the estate.
Elective share litigation ensues when the surviving spouse has not received their fair share of the estate, the 30% statutory minimum, and makes a claim to receive their share of the assets.
Breach of fiduciary duty and removal of fiduciary are regarding the administration of the estate. The person appointed by the court to administer, the personal representative, has a set of duties and responsibilities for which failure is actionable. Common issues include mismanaged or wasted funds, excessive fees, and failure to disclose. Fiduciaries who the court finds have breached their duties or committed another egregious act can be removed by the court. Surcharge actions are a related cause against the fiduciary to restore losses sustained by the breach.
Accounting actions typically occur at the end of probate and sometimes after it has been closed. Beneficiaries have the right to an accounting of the estate and in most situations must agree to the final distributions when being planned. If an accounting is not received or provided upon request, the court can compel the fiduciary to provide it.
Are you dealing with probate litigation? Call Oldham & Delcamp to schedule your consultation
Probate litigation, even over what appears to be simple matters, can quickly turn complex. Filing documents with the court requires adhering to procedural rules and guidelines which are not always easy to interpret. This process is often endured in addition to the experience of losing a loved one, making it even more challenging. The experienced probate lawyers of Oldham & Delcamp are familiar with this type of litigation and are prepared to represent your interests – call us today to review your probate matter.
Oldham & Delcamp is a member of the Attorney’s Real Estate Council of Broward County, is also currently on the Board of Directors of the Broward County Bar Association, and is the former chair of the Real Property section.
When your freedom is on the line, you need an attorney that is aggressive, responsive, and experienced. Oldham & Delcamp is committed to making sure that each of our clients receives the personalized attention of one of our attorneys.