In the probate process, an individual's estate and assets are divided amongst heirs, beneficiaries, and creditors. Probate assets include property, bank accounts, life insurance policies, retirement accounts, and investments, to name a few. The impact of probate and the division of assets can substantially impact the lives of beneficiaries and their loved ones.
Unfortunately when an individual dies, even with detailed estate plans and wills, complications can arise. Complications could threaten the assets the beneficiaries are set to inherit or result in loved ones missing out on their inheritance completely. This could be down to a last-minute fraudulent change to a will, excessive creditor claim to the estate, or a mismanagement of funds from the executor. Regardless of the reason, a lawsuit may be the best option for you to ensure your loved one's wishes are properly honored and that you receive the settlement you deserve.
Although contesting any part of probate may feel like a daunting task, it is essential that you do not delay if you have a concern regarding the division of an estate. The time allowance to begin litigation to contest probate is small in Florida, and delays may risk you losing the right to contest.
Miami Family Law Group, PLLC's probate lawyers successfully represent clients across Coral Gables, FL, in complicated probate litigation cases. Our attorneys have been practicing law for over 20 years and are highly experienced in navigating the complexities of probate law. We understand the impact that the outcome of probate can have on our client's lives, and we will use our extensive knowledge to secure a successful outcome for you and your family.
If you have any concerns over the probate process and your inheritance, contact a Coral Gables probate litigation lawyer today at 305-916-4053.
What Is Probate?
In Florida, probate administration can be described as the process of dividing and handing over an individual's assets and property to their heirs after death. The process begins when an individual files a petition for administration with the probate court in the county where the descendant died, which will open probate.
During probate, an executor or personal representative is appointed to manage the probate process and ensure that the estate is handed over to the beneficiaries, in line with the Florida Probate Code. The process includes paying a descendant's valid outstanding debts, gathering and creating an account of assets, paying taxes, and distributing assets in accordance with the descendant's will. Throughout probate, the personal representative has a responsibility to prioritize the best interests of the beneficiaries.
The probate process can be complicated, as assets are divided among all that have a claim to the estate, including creditors and heirs, and conflict can arise. Beneficiaries, trustees, or an interested party can file probate litigation to contest any element of the division of the estate.
Common Areas Of Probate Disputes
One of the most common topics within probate litigation is challenging the validity of a will. However, the probate process is complex and includes more areas than just the enforcement of a descendant's will. As such, probate litigation covers many more topics than disputing a will, including challenging creditor claims, trust litigation, guardianship, and family allowance. Some of the most common areas of probate litigation include the following:
- Wills
- Trusts
- Rights of beneficiaries
- Rights of spouses
- Guardianship
- Family allowance
- Marital trusts
- Bank accounts
- Life insurance
- Taxes
Miami Family Law Group, PLLC's probate attorneys are experienced in the probate related practice areas and the issues you may encounter during the division of an estate.
Will Disputes
Challenging the validity of a will is one of the most commonly occurring probate matters in Florida. A will dispute aims to have either the entire will of a descendant or part of the will, declared invalid. A challenge can be filed with the probate court once probate has been opened. An individual may dispute a will if they think an heir has been wrongfully excluded from the will, if a substantial amount of the estate has been left to an unexpected beneficiary, or perhaps changed at the last minute.
Regardless of the reason behind the dispute, a party must have legal grounds to contest a will in probate. Typically a will contest is filed on the grounds of invalid signing or execution, undue influence, fraud, a lack of mental capacity, or duress.
In Florida, for a will to be considered valid, it must be in writing and signed while the descendant is mentally capable of understanding what they are doing. The will must also be signed in the presence of two witnesses. If a descendant is unable to understand what they are doing or comprehend the details of their will, such as the extent of their estate and who their beneficiaries are, this could render a will invalid. Similarly, if the descendant is placed under undue influence to assign assets to an individual, or if they feared for their own or a loved one's safety, this will invalidate the will if proven in court.
Any will-contest litigation requires a high standard of evidence that meets specific criteria to have a will declared void. To prove to a court that a descendant was not mentally fit to execute a will, or that they were under undue influence can be challenging. Each dispute case will vary depending on the facts and evidence available. Seek advice from a skilled probate attorney to develop an effective strategy specific to your case if you are looking to contest a will.
Creditor Lawsuits
During probate, a personal representative is responsible for settling any outstanding debts that a descendant left when they died. In Florida, once probate has begun, creditors may be served directly with a notice to creditors. Alternatively, creditors may be alerted to the start of probate by a notice that the estate has entered probate in a county newspaper. If issued with a direct notice, creditors have 30 days to file a claim against the estate or three months if they were alerted by the notice in the newspaper.
The timeframe to file creditor claims is short, as creditor claims are the first payments made from the estate during probate. If creditors don't file within the allotted time frame, they may lose their right to claim. Not all creditor claims are immediately approved. The personal representative must analyze the legitimacy of claims and may dispute them if necessary. Legal issues can arise when the representative of the estate and a creditor do not agree on a claim. In these situations, litigation is often used and the courts will make the final decision.
Creditors that may claim against an estate include mortgage companies, charities, credit card companies, and ex-spouses.
There are several common reasons that an estate executor may object to a creditor claim. These include the following:
- The claim was not filed by the correct date. - Depending on the method of notification, a creditor has up to 30 days or 3 months to file a claim against the estate. However, if the creditor did not receive notice, they have up to 2 years after the descendant's death to file. A source of dispute may be whether a creditor received a notice and subsequently the timeframe in which they had to file their claim.
- The claim includes charges that the creditor is not entitled to. These can include late fees and interest.
- The debt that the creditor is claiming has already been paid.
- The amount that the creditor is owed has been miscalculated in the claim.
The personal representative or any interested party can object to a creditor claim to the estate. In these circumstances, an interested party is defined as any person who could be affected by the outcome of the particular proceeding. Regarding creditor claims, this would typically include the beneficiaries or other creditors.
Once an objection is filed, the creditor who filed the claim has the option to file an independent action or abandon the claim. An independent action must be filed within 30 days of the objection being served.
Can I Establish Paternity In A Probate Case?
The division of an estate can trigger a range of complications, one of which occurs if paternity has not previously been legally established. If paternity was not legally established before a descendant's death, this could impact how assets are assigned to the deceased's children. To inherit assets without a will, an individual must be a biological or legally adopted child. You may be looking to establish paternity after death to ensure you receive the inheritance you are entitled to.
However, depending on your age, proving paternity in a probate case can be challenging. Florida Statutes 95.11 (3)(b) outlines the statute of limitations for paternity actions. Under this statute, paternity actions can only take place up to 4 years after the child turns 18. Often, when probate begins, this time limit has expired, which means even with DNA evidence, any paternity actions after this period are time-barred.
In 2009, newer Florida statutes came into place that removed the barring of paternity actions in probate cases and the associated 4-year time limit. However, this legislation is not retrospective and does not apply to potential claimants that were already time-barred by 2009. Essentially, this means that anyone aged 22 or older in 2009, when the new statute was enforced, is still time-barred and ineligible to file paternity actions in Florida probate cases. If you were aged 21 or younger in 2009, you are eligible to determine paternity and file a paternity action in probate.
My Parent Remarried Before They Died. How Does This Affect The Estate?
A descendant's previous divorce can lead to complications in the probate process, particularly if they have remarried since. This is particularly relevant if the descendant died without a will, otherwise known as intestate. During intestate, assets are assigned to heirs based on intestate succession laws outlined in Florida Statues. Under these laws, when an individual dies without a will or trust, their assets are inherited by their closest living relatives.
Complications can arise when determining the closest relative if a parent has remarried. If there is no prenuptial agreement in place, the first person to inherit assets is the descendant's surviving spouse. In some situations where a descendant is married but has children from a previous marriage, the estate may be split half for the spouse and half between the children. Each scenario of intestate succession can have complications and it is best to seek legal advice as soon as possible to defend your interests and ensure you receive what you are entitled to in the probate process.
Numerous marriages can also make the process of gathering assets during probate more complex due to more revisions of estate documents due to multiple marriages. Often, the relationship between ex-spouses can be tense and the probate process can exacerbate this tension, sometimes leading to disputes and potential litigation. If the descendant's first spouse was still receiving child support payments at the time of their death, the ex-spouse may need to file a creditor claim against the estate.
However, if your parent died with a valid will in place, usually, assets will be divided based on what is written in their will, provided there are no complications. If you have any doubt about the probate process or concerns that you will not be treated fairly, protect yourself with legal representation from an experienced probate attorney.
How Can An Attorney Help With Probate?
Anyone involved in the probate process can be represented by an attorney. The executor or personal representative is required to have a probate attorney, but legal representation could benefit any interested person involved in probate.
Your attorney can support your case in many ways, including filing motions with the court to speed along the process and improve your access to information during probate. For example, if you are not getting the answers you need as a beneficiary or interested party, an attorney can get a court order to ensure you get access to the relevant information. Similarly, probate law is complex and includes many formal procedures that must be followed, often with short deadlines. You must adhere to these processes to ensure your case progresses smoothly through the court and isn't dismissed for a procedural error.
Although the personal representative will have an attorney, often known as the attorney of the estate, having a lawyer that is only protecting your interests can be incredibly valuable, especially during disputes and litigation. Probate disputes can become contentious and animosity can run high, particularly as parties fight over inheritance. Representation from a skilled attorney with an in-depth knowledge of probate law is crucial to protect your rights in situations of probate litigation.
Remember, the law views inaction and silence as consent. If you have concerns about your inheritance or how the probate process is progressing, hire a reputable probate lawyer to take action.
Miami Family Law Group, PLLC
At Miami Family Law Group, PLLC, our team of knowledgeable and experienced probate attorneys has been successfully representing clients in probate lawsuits for many years. We have provided legal services in varying circumstances of probate litigation and are adaptable, experienced, and highly skilled in developing strong strategies to secure successful outcomes.
We pride ourselves on being passionate advocates for our client's rights and will work tirelessly to ensure you receive the best outcome possible from your probate case.
Contact An Experienced Probate Attorney Today
Many complications can arise during probate that have the potential to impact your inheritance. The complex nature of probate cases often means that every situation is unique and will require tailored legal advice. In most situations, if you feel that your rights are at risk, litigation is the best course of action to protect yourself.
Probate cases are subject to a short statute of limitations. As such, time is of the essence. If you have concerns, do not hesitate to contact a Coral Gables probate lawyer today. To discuss your options with a reputable attorney, contact Miami Family Law Group, PLLC at 305-916-4053.
