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Trust & Estate Litigation

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Often, due to people taking advantage of their access to estate or trust assets through bad conduct or otherwise, legal action including estate litigation may be necessary. Unfortunately, the people in positions of trust, whether they are acting as a estate executor, trustee, or other individuals with access to the assets, can easily create issues. There are numerous ways in which the probate process can be abused, such as fraud, mismanagement of assets, and even human error, that can create financial disasters and harm family relationships. These situations can lead to a will dispute, trust contest, estate litigation or removal of a trustee.

Due to the personal nature of these issues, estate litigation is one of the most emotionally charged areas of the law due to the family dynamics involved and impacted by the matter. When such situations arise, the experienced attorneys at Boyer Law Firm are ready to fight to protect your rights.

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What Is Probate or Estate Litigation?

Probate litigation, also known as estate litigation, is a term used to refer to a lawsuit filed in court to resolve disputes involving the administration of an estate.

What Is A Will Contest?

Among the most common disputes involving estate litigation is a challenge to the deceased person’s last will and testament seeking to invalidate it.

A will contest action is filed by someone who disagrees with some aspect of the will. It could be on the grounds that the will was not properly endorsed, another more recent will exists, allegations of undue influence or that the testor did not have the legal capacity to sign the will.

Who is Eligible to Contest a Will or Trust in Florida?

To challenge a will in Florida, the individual must have legal standing. Generally, any person with interest in the estate or an individual with a potential stake in the deceased individual’s estate will have legal standing to challenge the will. This includes anyone interested in the welfare of an incapacitated person, such as a minor. Legally, however, only a person – not an entity such as a charity, has legal standing to contest a will.

There is a strict deadline for filing a challenge to the administration of a will, which is generally 90 days after the filing of a notice of administration.

Grounds For Contesting A Will

Simply being surprised by the will’s contents is not enough to challenge the will as there are limited grounds available to do so. Most of the permissible challenges involve issues with the form and are relatively straightforward. Some of these grounds include:

Timing and Procedure For Contesting A Will

It is imperative to act quickly. Florida law provides ninety (90) days for a claimant to file with the court. There is no additional time to consider your options, discuss with an attorney, discover, or gather supporting documents, and formally filing in court. However, if a formal Notice of Administration has been provided prior to the will being admitted, that time is shortened to a mere twenty (20) days. 

There are some exceptions to the deadline, such as when the probate action has been concealed. Otherwise, most interested parties will be precluded from filing once the deadline passes. Therefore, you should speak to an experienced probate attorney as soon as possible even if the deadline is near or has expired. In limited situations, petitions are allowed to be filed past the deadline. A skilled estate litigation attorney can advise you of your legal options.

When an interested party wishes to contest a will, they do not file a separate lawsuit but rather file a petition in the probate court in the existing case. Essentially they will be turning the probate action into an adversary processing and requesting that the will be deemed invalid, in whole or in part, or requesting that the court will revoke the will due to undue influence, fraud, or duress.

As the petition is an adversarial process, the litigation will pursue as would any other lawsuit. All parties will be required to follow the rules of court, procedural rules, and substantive law. As stated below, there are hard and fast deadlines in Florida for contesting a will. Therefore, if you wish to contest a will, it is generally in your best interest to consult an experienced probate and estate attorney before taking any action.

What Are The Possible Outcomes Of Contesting A Will?

Several possible outcomes can occur, depending in large part on the grounds alleged to challenge the will. When a will is contested, and you are successful, the will may be:

Found invalid, in whole. Generally, if the decedent had a prior executed will, that previous will can be reinstated. If the decedent did not have a prior will, the estate will be distributed according to Florida’s intestacy laws.

Found invalid, in part. A portion can be found invalid and the decedent’s assets will be distributed according to the remaining clauses. Deemed invalid or unenforceable in part, in which case the remaining provisions will be carried out.

Risks Associated with A Will Contest

While many people are concerned with challenging a will due to a present “no contest” provision in the Will, Florida law does not recognize such clause and will not uphold it. As such, any interested person who challenges a will in Florida, whether successful or not, will remain entitled to whatever he or she was given pursuant thereto. In other words, a contest will not exclude them from inheriting from the Decedent.

Other Causes of Action in Probate or Estate Litigation

Florida law recognizes several additional bases for litigation involving probate, such as:

Florida Trust Contest And Litigation

Trusts have long been used to make things easier on beneficiaries and to avoid probate court. Unlike a Will, a Trust takes effect as soon as it is created and can be used to distribute property before or after death. Most trusts are drafted to ensure little if any assets are left in the estate that would be subject to probate, and thus probate court would be avoided. However, some trusts are created similar to a Will, and takes effect as soon as it is created and can be used to distribute property before or after death. While trusts can be a great way to save beneficiaries time, court costs, and attorney’s fees, there is no guarantee that litigation or a trust contest will be avoided entirely. This is especially true, like probate, a court oversees the process, including how the assets are distributed, a trust passes outside of probate and outside the courtroom. Despite a well-drafted trust document, legal issues can and do still arise, such as the purpose of the trust no longer being viable or the trustee’s wrongful actions.

Challenging a Trust in Florida

In another form of estate litigation, any interested person may file a trust contest on anyone, or a combination thereof, of the grounds available. The causes of actions are very similar to what you would see in probate court, including:

Challenging the Trustee’s Actions – Breach of
Fiduciary Duty

Most trust contests are centered on the actions and omissions of the trustee. These disputes involve the person appointed to oversee the trust, the trustee, and allegations that they did not administer the trust appropriately, such as:

Removal of a Trustee

Much like any other job, a trustee can resign at any time. Resignation of a trustee may occur either with court approval or by providing a 30-day notice to all qualified beneficiaries and co-trustees or the settlor of the trust. Pursuant to Florida Statute 736.0706, if all eligible beneficiaries agree, a trustee can be removed. However, the beneficiaries must show that removal serves everyone’s best interest, and there must be another trustee available to take over.

Pursuant to Florida Statute 736.0706, a trustee can be removed upon showing any enumerated statutory grounds for removal, such as a breach of trust or persistent failure to effectively administer the trust.

Alternative Action to a Trust Contest

Like other states, Florida law now permits interest parties to deal with trusts and to dissolve trusts without involving the courts.

Don’t Know If Your Dispute Has Merit?

You may not understand every facet of your trust contest, estate dispute, or will contest case or how the law might apply to your loved one’s will. Still, an experienced Florida Probate attorney at Boyer Law Firm, P.L. can evaluate your potential estate litigation case, answer your administration and dispute questions and help you consider your options. Give us a call.

Administration or Litigation Of Florida Estates
And Trusts With Our Team Of Skilled Florida
Probate Attorneys

If you are a personal representative or beneficiary of an estate, Boyer Law Firm can assist in actions such as estate litigation, a will dispute and a trust contest. As the personal representative, we ensure that you comply with the Florida Statutes and your fiduciary duties and provide proper notice to the other interested parties. Although the fiduciary is obligated to retain counsel, all interested persons have a right to counsel. We represent beneficiaries of estates either when there is litigation or when a beneficiary wants to ensure they understand the process and their rights.

If you believe you may have a Florida estate litigation, trust contest or will dispute matter and need to speak to a Florida Probate Litigation Attorney, please call the lawyers at Boyer Law Firm, P.L. to receive a case evaluation.

Offices in Miami, Orlando, and Jacksonville.

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