Estate Litigation Lawyer in Florida

A Will facing litigation must strictly comply with the formal execution requirements of Florida Statute §732.502 to be admitted into probate. First, the entire Will must be in writing, as Florida does not recognize oral or holographic (handwritten without witnesses) wills. Second, the testator, the person making the Will, must sign the document “at the end” or direct another to sign in their presence. Third, the testator must sign or acknowledge the Will in the presence of at least two attesting witnesses. Crucially, both witnesses must then sign the Will in the physical presence of the testator and in the presence of each other. If the Will is contested, the proponent of the Will bears the initial burden of proof to establish this prima facie (at first sight) formal execution and proper attestation. If a properly executed self-proving affidavit is attached, it creates a presumption of valid execution, making the initial burden easier to meet. However, failure to strictly follow even one of these formalities is a valid, primary legal ground for a will contest, rendering the Will invalid.

A “pretermitted child” is a child born to or legally adopted by the testator after the execution of their Last Will and Testament. Florida Statute §732.302 governs the inheritance rights of this specific class of unintentionally omitted children. Yes, a child born or adopted after the Will was made can generally claim a share of the estate. The purpose of this statute is to prevent the unintentional disinheritance of a child who was unknown or not yet in existence when the Will was drafted. Unless one of the statutory exceptions applies, the pretermitted child will receive a share of the estate. This share is equal to what the child would have received if the testator had died without any Will (intestate). However, the child may not claim a share if it appears from the Will that the omission was intentional. Furthermore, no share is granted if the testator had other children when the Will was executed and left substantially all of the estate to the pretermitted child’s other parent. Finally, the child’s claim is also barred if they have already received an equivalent part of the testator’s property by way of advancement.

If you suspect a Florida Personal Representative is mismanaging an estate, you have recourse as an “interested person” under Florida law. The Personal Representative owes a fiduciary duty to act in the utmost good faith and in the best interests of the estate and its beneficiaries. Signs of mismanagement include “wasting or maladministration of the estate,” failure to provide proper accountings, or a conflict of interest. Pursuant to Florida Statute §733.504, an interested party can file a Petition for Removal with the probate court. Grounds for removal include a failure to comply with court orders, to account for estate assets, or to properly manage property. If a breach of fiduciary duty is proven, the Personal Representative can be held personally liable for any resulting loss or damage to the estate. The court may also order a “surcharge” to recover lost funds, remove the representative, and appoint a successor. Given the complexity of probate litigation, you should immediately consult an experienced Florida probate attorney.

Assets that pass outside of probate, such as life insurance policies and Payable on Death (POD) accounts, transfer directly to the named beneficiary by operation of law. These non-probate transfers typically supersede any contrary provision in a Will, making them immediately available to the beneficiary. However, Florida law allows such assets to be challenged and potentially clawed back under specific circumstances. For instance, a beneficiary designation can be contested in court on grounds such as fraud, duress, or undue influence on the decedent, which is similar to contesting a Will. Furthermore, non-probate assets may become liable for a decedent’s debts and estate expenses if the probate estate’s assets are insufficient to cover all valid creditor claims. The Florida Statutes specify an order of payment for estate obligations, allowing certain creditors to reach assets from a revocable trust or other non-probate property if necessary. Life insurance proceeds generally maintain a high degree of protection from creditors under Florida Statute §222.13, unless the estate itself was named as the beneficiary. Any interested party involved in a dispute over non-probate assets should seek counsel from a qualified Florida probate litigation attorney. The central issue in these disputes is usually proving that the decedent’s intent or mental capacity was compromised when the designation was made.