During some of life’s most difficult times, dealing with the estate of a loved one who has passed away—a legal process known as probate—can seem overwhelming.
You may have recently learned that you were named in a decedent’s will as personal representative of the estate, or that you have the potential to inherit assets from the decedent. Creditors, trustees, and other interested persons might also have a financial stake in, or a legal obligation to, the estate.
Probate is the legal process of settling an estate.
If you are in any way affected by the outcome of probate proceedings, you should get in touch with a probate attorney to discuss your legal rights and protections.
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 if we do not 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 for any matter.
Probate Cases We Handle
The Business Trial Group represents estate administrators, beneficiaries, heirs, creditors, and other interested parties in probate administration and litigation matters that include:
- Formal estate administration
- Will contests
- Trust contests
- Elective share litigation
- Elder financial abuse and exploitation
- Breach of fiduciary duty
- Creditor disputes
- Estate planning malpractice
To discuss a specific probate issue, please schedule a complimentary case review.
Probate administration is a court-supervised process that settles a decedent’s debts and passes property held solely in their name to heirs and beneficiaries.
Although probate is avoidable, most estates have some assets and debts that must be probated. Estates that are worth less than $75,000 may be eligible for a simplified court proceeding known as summary administration. Summary administration is also possible if the decedent has been dead for more than two years.
Most estates have some assets that require probate.
Florida estates that do not qualify for summary administration must go through formal administration. But when formal administration is needed, not all assets must be probated.
Only those assets that are held solely in the decedent’s name at the time of death are required to go through probate. For example, accounts held jointly with a surviving spouse, life insurance that names a beneficiary, and assets held in a trust pass to beneficiaries outside of probate.
How Probate Works
Probate begins when the person named in the will as estate administrator presents the will to the probate court. If there is no will, the court appoints someone as estate administrator, typically the decedent’s spouse or adult child.
Once the will is admitted to probate, the personal representative takes an inventory of estate assets (including property, stocks and bonds, and business interests) and places them in an estate account. The representative also notifies creditors of the estate and beneficiaries who may inherit estate assets.
Legitimate creditor claims and other estate bills, such as funeral expenses and taxes, are paid from the estate. If the representative thinks certain creditor claims are not legitimate, those claims can be disputed.
After the estate’s debt obligations are satisfied, remaining assets are distributed to beneficiaries according to the decedent’s will. If there is no will, Florida law determines how assets are passed on.
Additional Probate Considerations
Probate administration can be completed in a few weeks or stretch on for months or years.
Complications and disputes can extend probate.
Factors that may complicate probate include an estate with no will, an estate with many assets, creditor disputes, business assets that must be managed or sold, will contests, or a missing heir.
Probate occurs in the Florida county where the decedent resided or owned property. Domiciliary probate is probate for a deceased Florida resident. Ancillary probate is probate for a non-Florida resident who owned property in the state. Both types of probate require hiring a Florida probate attorney.
In most cases, it is not necessary for the estate’s personal representative to appear in court, unless there is a dispute that requires a hearing.
Estate representatives, beneficiaries, and other interested parties who require attorney representation or have probate and estate questions should contact The Business Trial Group and schedule a free case review.
Disputes about the terms of a decedent’s will or the probate process itself may need to be resolved through litigation.
Any interested party has the right to take legal action against the estate or against the estate administrator. Interested parties include:
- Beneficiaries (those named in the will)
- Heirs (next of kin who are not named in the will)
- Creditors (persons and companies entitled to payment from the estate)
Anyone with inheritance rights—including relatives named in the will and relatives not named in the will who have a statutory right to succession—may file a claim contesting the decedent’s will.
Will contests can allege that the will violates Florida law because:
- The will was not drafted, signed, or witnessed according to state law
- The person who created the will was mentally unfit at the time of creation
- The creator was unduly influenced by someone
A will contest can also allege that the will, in whole or in part, contains unclear, ambiguous, or incomplete language that raises questions about asset disposal.
If successful, a will dispute may result in the will being invalidated and/or amended.
Breach of Fiduciary Duty
Florida law considers estate administrators to be fiduciaries. As a fiduciary, the administrator has legal duties to estate beneficiaries. These duties include:
- Following Florida probate law
- Responsibly managing estate assets
- Not stealing or self-dealing
- Properly investing estate assets
- Not incurring excessive administration costs
Administrators who violate their fiduciary duty may be removed from their role, ordered to pay damages, or both.
Elder Financial Exploitation and Power of Attorney Abuse
Financial exploitation of an elder is a crime no matter the circumstances, but the exploitation could have ramifications that extend beyond the victim and also affect beneficiaries.
For example, elders often grant another person the legal authority to make financial decisions on their behalf—an arrangement known as a power of attorney. But the person granted the power of attorney might act in their own interests, and not the elder’s interests, by stealing, misappropriating, self-dealing, or embezzling.
Florida law treats elder abuse very seriously.
An elder’s court-appointed guardian could similarly abuse their legal authority for financial self-gain. However, financial exploitation can occur at the hands of those without special legal authority over an elder’s affairs. Anyone in a position of trust, including family members, can financially abuse an elder, either by illegally taking assets while the elder is still alive, or by convincing the elder to modify their will in such a way that the exploiter inherits assets at the expense of other beneficiaries.
Florida’s elder abuse laws are among the strongest in the nation, providing for the recovery of punitive damages and attorneys’ fees in addition to any specific abuse damages.
Elder financial exploitation may be best-handled outside of probate, in civil court. Our attorneys will help you determine the best course of action if you suspect elder abuse.
Surviving Spouse Elective Share Rights
Florida surviving spouses have very specific rights when it comes to their share of a decedent’s estate.
Provided that the will is made while the couple is married, the surviving spouse, upon his or her spouse’s death, is entitled to receive 30 percent of the decedent’s estate, the couple’s primary residence, and up to $18,000.
The surviving spouse is entitled to these benefits even if they are not explicitly provided for in the will. If the will was made prior to the couple’s marriage, these rights may not apply.
Spouses who do not receive their fair share of a Florida estate can file a probate litigation claim for recovery.
Estate Planning Malpractice
Estate planning attorneys help people make end-of-life plans, including drafting a Last Will and Testament and setting up trusts.
Estate planning errors can lead to a lawsuit.
Errors on the attorney’s part can result in probate that is unnecessarily long, contentious, and costly. Since estate planning attorneys are required to follow professional conduct standards, any estate planning errors that result in costs to the estate may be the basis for a misconduct lawsuit.
The Business Trial Group has significant experience helping victims of professional malpractice.
One of the main reasons for placing assets in a trust is to avoid probate. But even the most carefully-constructed trusts can become the subject of a probate dispute.
Beneficiaries and heirs may file suit.
There are two main types of trust disputes. The first type takes issue with how the trustee is managing the trust on behalf of beneficiaries. The second closely resembles a will contest and seeks to challenge the trust’s validity.
If successful, a trust lawsuit can result in monetary damages, changes to the trust, dissolution of the trust, and/or removal of the trustee.
Trusts are structured in such a way that a trustee holds and manages assets on behalf of one or more beneficiaries.
The trustee—similar to the personal representative of an estate—is considered to be a fiduciary, and as such, owes duties of care and loyalty to trust beneficiaries. Specific trustee fiduciary duties include:
- Distributing trust assets to beneficiaries according to the trust’s terms
- Making trust investments that are not excessively risky
- Administering the trust in a cost-effective manner
- Putting the beneficiaries’ interests first, and not self-dealing or making improper third party gifts
- Giving an annual accounting of the trust to beneficiaries
Both sides in a trust lawsuit should seek attorney representation to ensure their rights are protected.
Trust terms may be challenged by beneficiaries or by heirs who believe they were wrongly not named as trust beneficiaries.
Typically, a trust is contested on one or more of the following grounds:
- The person who made the trust was mentally unfit at the time of creation
- The person who created the trust was unduly influenced by another person
- The trust does not comply with state law
- The trust contains unclear, confusing, or contradictory language
Contingency-Fee Probate, Trust, and Will Attorneys
The attorneys at the Business Trial Group handle all probate and trust disputes, regardless of complexity, on a contingency-fee basis. For simpler administration matters, attorney fees are statutorily determined and payable directly from the estate.
Many probate matters are subject to strict filing deadlines, so it is important that you reach out to our attorneys as soon as possible.