When Florida residents or property owners pass away, their death sets into motion a legal process known as probate. Through probate, a deceased person’s assets are distributed to the heirs of his or her estate under court supervision. Probate also involves paying a decedent’s outstanding taxes and debts.
Depending on the circumstances, probate can be quick and straightforward or long and drawn out. A simple estate with a clear, uncontested will can go through probate in a matter of weeks. But many issues can complicate probate, such as the lack of a will, a challenge to the will’s validity or meaning, creditor claims, or a surviving spouse’s rights.
In virtually all Florida probate cases, the personal representative of the decedent’s estate is required to have attorney representation. And anyone filing a probate dispute should hire a lawyer.
The Business Trial Group understands that probate requires sensitivity as well as assertiveness, and we strive to honor the wishes of the deceased while upholding the rights of beneficiaries and creditors. If you are a beneficiary or creditor who may have a probate claim, or you have been named as a personal representative and need help with probate administration, our Florida probate attorneys can help.
We represent parties with probate and trust claims on a contingency-fee basis, which means you pay us nothing unless and until we make a recovery in your case. And our probate administration attorneys get paid directly from the estate, so you will not have to pay any out-of-pocket hourly fees or high retainers.
To learn more about how we can help with your probate matter, contact the Business Trial Group’s Florida estate attorneys for a free case review.
Florida Probate Administration
The death of an individual in Florida automatically creates a legal entity called an estate that contains the individual’s assets and debt responsibilities. Probate is the process through which an estate is settled with the decedent’s beneficiaries and creditors.
Not all estates, however, require probate. And probate can unfold in different ways based on the estate’s size and complexity.
Types of Probate
The Florida probate process can be differentiated in the following ways:
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Probate vs. non-probate assets: Only those assets that were solely owned by the decedent at the time of death must go through Florida probate administration. Any assets that are jointly owned or have a designated beneficiary are not subject to probate administration.
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Summary vs. formal administration: When an estate is worth $75,000 or less, or the decedent has been dead for more than 2 years, the Florida estate qualifies for an abbreviated probate known as summary administration. Florida estates that do not qualify for summary administration undergo regular probate or formal administration.
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Domiciliary probate vs. ancillary probate: Domiciliary probate is probate of assets that are located in Florida and owned by a decedent who was a Florida resident. Ancillary probate is probate of assets that are located in Florida but owned by a decedent who was not a Florida resident.
Rights of Surviving Spouses
Surviving spouses in Florida are typically entitled to a share of their deceased spouse’s estate—even if he or she is not explicitly provided for in the will.
A spouse may be disinherited if the will was made prior to the couple marrying, but as long as the will was made while the couple was married, the surviving spouse may receive:
- An elective share (usually 30%) of the decedent’s estate
- A life interest in the couple’s primary residence
- A family allowance up to $18,000
Surviving spouses who do not receive their fair Florida Elective Share should consult a probate lawyer.
When to Contact a Florida Probate Attorney
Check out our step-by-step guide to probate administration.
No matter what state you live in, if you are named in a will as the personal representative of a deceased Florida resident’s or Florida property owner’s estate, you should contact an attorney right away to start the probate process.
You should also get in touch with our Florida probate lawyers if the named personal representative is unable or unwilling to serve in this capacity, the decedent left no will, or if you are a surviving spouse who needs guidance concerning your rights.
Florida Probate Litigation
During probate, surviving family members and creditors may make legal challenges concerning the structure of a decedent’s will or trust and what they believe is their rightful share of an estate. This type of lawsuit is known as probate litigation.
The Business Trial Group handles probate litigation on a contingency-fee basis, so you pay no up-front legal fees, and we are only paid if we successfully resolve your probate dispute.
Types of Disputes
Our Florida probate attorneys represent individuals who are owed inheritances under wills and trusts. We also represent beneficiaries in suits against trustees for mismanagement of assets and breaches of fiduciary duties. Some common types of probate litigation are described below. If you have any questions, schedule a no obligation consultation with our Florida estate lawyers.
Breach of Fiduciary Duty
Trustees, guardians, and personal representatives of an estate are established under Florida law as fiduciaries, and as such have legal duties to other estate beneficiaries. When a fiduciary fails to meet their duties and causes financial harm to beneficiaries, the beneficiaries can bring a probate litigation claim to recover money.
Breaches of fiduciary duty can include:
- Violations of Florida probate law
- Stealing, self-dealing, or mismanaging estate assets
- Excessive payments to trustees or personal representatives
- Making improper investments
Elder Financial Exploitation and Power of Attorney Abuse
Towards the end of life, people can be highly vulnerable to abuse and exploitation, especially if they have reduced mental faculties.
If you would like to learn more about protecting the elderly from financial exploitation, visit our elder exploitation page.
In some cases, a person in a position of trust—including a court-appointed guardian—takes, misappropriates, or misuses an elder’s personal assets through fraud, deception, or coercion (for example, they may convince the elderly person to give them money or forge a check).
In other cases, elder financial exploitation occurs in the context of a power of attorney, a document that delegates legal authority from one person to another. An elderly person may wish to grant a power of attorney to a trusted person who can handle their financial affairs. However, this authority can easily be abused through self-dealing, embezzlement, unlawful gifting, or other abuses of authority.
Financial exploitation of an elderly person can result in beneficiaries’ inheritance being squandered or heirs being cut out of a will completely. If you feel that a loved one currently is being financially exploited—or was prior to their death—a Florida probate lawsuit may be appropriate.
Florida’s strong elder abuse laws provide for the recovery of punitive damages and attorneys’ fees in elder financial exploitation cases.
Fraud, duress, or undue influence upon the decedent that results in a beneficiary not receiving their expected gift or bequest may be more appropriately resolved outside probate court, through a tort remedy known as tortious interference with an expectancy.
Florida Will Contests
Suspected wrongdoing in connection with a will’s creation can lead to a will contest in probate court. The goal of this proceeding is to show that a will, or parts of it, are invalid, due to factors that include:
For more information, visit our will contests page.
- Lack of mental capacity
- Undue influence
- Duress
- Fraud
- Insane delusion
- Lack of proper formalities
There is a very limited amount of time to contest a will’s validity in Florida, so if you think that you have lost out on an inheritance due to an invalid will, contact the Business Trial Group’s Florida will contest attorneys right away.
Florida Estate Planning Malpractice
The Florida attorney who drafted a decedent’s will could have made errors when creating or executing the document that results in negative, unintended consequences. For example, the attorney may have failed to:
- Create the will in accordance with the decedent’s wishes
- Fully consider estate and income tax consequences
- Property execute the will
- Place life insurance in a trust
Attorney errors can result in costly probate litigation. Suspected estate planning malpractice should be discussed with a Florida probate litigation attorney.
Florida Trust Lawsuits
Placing assets in a trust can help to avoid probate court and simplify the distribution of assets upon an individual’s death. Trusts, however, are not always without complications and issues.
Trustees are endowed with a great deal of power in relation to trust beneficiaries. Florida law recognizes this and imposes a fiduciary duty on trustees. This duty requires trustees to act in the best interest of beneficiaries.
Beneficiaries who believe that a trustee is not fulfilling their fiduciary duty may take legal action against the trustee. They may also file a lawsuit seeking to declare a trust invalid, in whole or in part. Trust disputes are handled in regular (non-probate) civil courts.
Florida Trustee Obligations
Florida’s trust code requires that trustees fulfill duties that include:
- Making proper and timely distributions to beneficiaries, in accordance with trust terms
- Making suitable, prudent trust investments
- Not incurring unreasonable expenses in administering the trust
- Not self-dealing at the trust’s expense, or inappropriately gifting third parties
- Keeping clear, distinct, and accurate records of the trust administration
- Providing a full accounting of the trust to beneficiaries each year
When a violation of a trustee’s fiduciary duty results in economic harm to beneficiaries, the beneficiaries can bring a civil claim for damages.
Florida Trust Contest
Trust litigation can also challenge the trust’s validity. This type of claim seeks to declare the entire trust, or parts of it, invalid. It may seek a settlement on behalf of the claimant, a modification or reformation of the trust, termination of the trust, or removal of the trustee.
For example, a beneficiary—and often, someone left out of the trust—can challenge the trust’s legal validity by claiming that the person making the trust was mentally unfit at the time of its creation, or was unduly influenced by a confidant. Another common trust dispute involves the claim that the trust does not comply with Florida law.
In other cases, a claimant may simply seek clarification of ambiguous, confusing, or contradictory trust language.
Trust contests need not always be decided by the court. If the parties can reach an agreement, Florida law has provisions that allow for resolution of the dispute without the court declaring the trust invalid.
The Business Trial Group represents beneficiaries and trustees in a wide range of trust litigation issues. Please contact our Florida trust attorneys if you have questions or concerns about a trust.
Contingency-Fee Probate and Trust Attorneys
The Business Trial Group’s Florida probate and trust lawyers handle disputes on a contingency-fee basis. Regardless of the complexity of your probate or trust claim, you will pay no up-front fees and you will pay nothing unless we win your case.
Discuss your probate and trust questions or concerns with our lawyers during a no-cost, no-obligation case review.