Probate litigation can involve contentious situations within the family, friends, and strangers that are in one way or another involved in the decedent’s estate. As a result, probate litigation can be a strenuous and emotional process. An experienced probate litigation attorney can help with challenging an estate plan—for example, contesting a will or trust that was improperly procured. A probate lawyer may also be able to help with defending and upholding the decedent’s wishes, and safeguarding the inheritance for its heirs. Suing personal representatives who have been derelict in their duties or flat-out broken the law is another situation where a probate litigation attorney can help. The lawyers at Apfelbaum Law may be able to assist you with probate litigation and transactional matters.
How Long Does Probate Litigation Take?
Depending on the circumstances, probate might be very fast and straightforward, or it could be lengthy and drawn out. In some cases, a simple estate with a concise, uncontested will, combined with an uncongested court calendar, may go through probate in just a few weeks. However, you shouldn’t count on that always being the case. Many issues may serve to complicate probate, including the lack of a will, a challenge to the will’s validity or meaning, creditor claims, or a surviving spouse’s rights. Litigation often adds months to the probate process.
A will contest is a formal objection challenging the validity of a will, based on the contention that the will doesn’t represent the true intent of the will writer (testator/testatrix). There are many different grounds for contesting a will in Florida, including, but not limited to:
- Lack of mental capacity. For a will to be valid, the testator must be able to understand the extent of their property, the relationship of those who would stand to inherit (the testator’s family), and the practical effects of the will. If the person is found not to have had testamentary capacity when the will was made, then the will is invalid. This may be the case if the decedent was suffering from physical or mental health problems or taking medication that clouded their thinking.
- Undue influence claims. These usually occur when a person has exerted undue influence on someone—coercing this person to execute their will in a certain way, make a large gift while still alive, to inherit or disinherit someone, to sign a contract, etc. In these cases, it’s necessary to prove the undue influence was so great that the testator, donor (gift giver), or party to the contract had lost the ability to exercise their own judgment.
- Probate fraud. A probate fraud is the intentional use of deceit, a trick, or other dishonest means to deprive the decedent, the estate, or its beneficiaries of money, property or a legal right.
- Forgery and alteration of instruments. A forged or altered will or codicil is not valid under the law, and may be set aside by the court.
Actions Against Personal Representatives
Personal representatives who are expected to be managing money or property for another person should uphold their duties with integrity. If they fail to do so, you may have options:
- Breach of fiduciary duty. The personal representative is a fiduciary to the estate and beneficiaries of the estate. This person is required to maintain the highest level of care in carrying out its duties. They should behave honestly, honorably, transparently, and in good faith. If a personal representative doesn’t meet those standards, they may have breached their fiduciary duty to the estate and its beneficiaries.
- Beneficiary Rights. After a decedent has passed on, the beneficiaries of the decedent’s estate have the right to information from the personal representative. In particular, beneficiaries have the right to an accounting of all activity in the estate. If a beneficiary takes issue with how the personal representative is managing estate funds, they can seek relief in court.
- Surcharge of personal representative. If a personal representative does something wrong, they may be subject to a surcharge action, where the personal representative is forced to pay money back to the estate.
- Removal of personal representative. This is a strong remedy and usually only happens because of an intentional violation of a fiduciary duty or from other wrongful conduct. It is particularly useful in situations where the wrongful conduct is very likely to continue without removal of the personal representative.
The above are mere examples of different instances in which Apfelbaum Law may be able to assist you in a probate litigation matter.
If you need assistance with your probate litigation case, or have questions about any potential legal matter, please contact Apfelbaum Law for a consultation. We have offices in Port St. Lucie and Stuart, but provide legal services throughout the Treasure Coast and Florida.