6 FAQS ABOUT PROBATE LITIGATION ANSWERED
Dealing with the estate of a loved one who has passed away — a legal process known as probate — can be overwhelming. Particularly so, if there is a dispute regarding the assets of the estate, which may need to be resolved through litigation.
Attorney Sean Perkins, who is a partner in the Morgan & Morgan Business Trial Group, focuses his practice exclusively on probate, trust, and guardianship litigation. Sean fights to protect his clients’ inheritance rights in all types of disputes, including will and trust contests, elderly abuse, guardianship litigation, estate disputes, fiduciary litigation, and assertion of statutory inheritance rights.
What is probate litigation?
Generally, there’s no fight in an estate administration – people get their money, their property, or their assets. In probate litigation, usually there is a fight over the rights to some assets of the estate. And that’s when we come in. We fight for the disinherited, and we work on a contingency fee, so our clients pay no upfront, out-of-pocket fees or expenses.
I represent people who have been wrongfully disinherited through fraud, undue influence, or lack of capacity. We also represent surviving spouses who are not receiving their statutory entitlements as provided for under Florida law. This is also applicable to minors as it pertains to things such an interest in homestead real property under the Florida constitution.
What rights do I have as a surviving spouse?
In Florida, surviving spouses have certain rights when it comes to a deceased spouse’s estate, unless they make a knowing waiver in writing. Let’s say your spouse owns a house in his or her name and has a million dollars in the bank, but has it all going to someone other than you. To protect your interest in this property that you are absolutely entitled to unless you waive them in an agreement, it is necessary to file a timely notice of election for elective share. There are often disputes over whether an elective share was waived, and what assets are subject to the elective share. It is also important to note that spousal statutory rights are a floor (not a ceiling) for spouses to make sure that they don’t get disinherited.
How would I know if I need to contest the will?
In a will contest, generally you would look for an unnatural disposition of assets that are going to someone other than the surviving spouse or children.
It could be one child taking a substantially larger share. You look at that and you look at the timing of it. Did it happen when the decedent was mentally infirm? Was the person who was the substantial beneficiary active in the procurement of the document under which they inherited substantially? Did they suggest the drafting attorney to the deceased?
When you see these factors, a disinherited or reduced beneficiary can file a will contest trying to set aside that last version of the will in favor of a prior document or, if none exists, intestacy.
One of the key issues here is standing. You cannot file a will contest unless you are the beneficiary under a prior document or you would be an intestate heir of the decedent.
What’s the difference between a will contest and a trust contest?
A will contest involves your last will and testament, which is a testamentary document that’s filed with the clerk of court when you die in Florida. A trust generally is generally not filed. And that’s one of the benefits of a trust: privacy. However, in a trust contest, one of the requirements is we have to attach a copy of the trust to the lawsuit because you have to include the document that’s being sued over.
What if my deceased relative changes the power of attorney?
We do litigate cases involving power of attorney. For example, the decedent changes the power of attorney 10 days before he passes. If the circumstances warrant, we may allege the document is void due to undue influence, lack of capacity, and/or exploitation of the elderly.
What we can attempt to do is set aside that power of attorney, and if we are successful then we can seek to invalidate any documents that were executed with the changed power of attorney, and claw that money back into the estate.
What should I do if I need to dispute the will or trust of a relative?
Consult with a litigation attorney who specializes in probate disputes. The Business Trial Group’s experienced attorneys handle probate litigation matters on a contingency-fee basis, so you pay no up-front fees for our services, and you pay nothing at all until we make a recovery in your case. Since our attorneys get paid directly from the estate, you incur no out of pocket expenses of any kind.