The process of probate, when an individual's assets are divided among beneficiaries following their death, is an emotional time for families and loved ones. This can then be amplified by the stress of complications and disputes over the estate.
Probate litigation can arise for several reasons, including will disputes, disagreements with creditors, and mishandling of the estate. For example, in situations where a personal representative is not managing the division of assets appropriately or where a will was changed under suspicious circumstances, asset protection is crucial. As such, many beneficiaries turn to probate litigation to defend their interests.
Litigation is a valuable tool for individuals questioning the legitimacy of the division of an estate for any reason. A lawsuit can allow beneficiaries to take back control from a problematic executor wasting valuable inheritance or dispute a suspicious change in the will that could be illegal. Similarly, a descendant may have been taken advantage of in a vulnerable state or pressured into changing their will against their wishes. In such situations, litigation allows you to contest the will and ensure that the legitimate wishes of your loved one are honored.
Probate-related legal action can be a lot to manage on your own, particularly while grieving the loss of a loved one. Contact Miami Family Law Group, PLLC to handle your case on your behalf to reduce the burden. Secure representation from a probate attorney devoted to fighting for your best interests and securing successful outcomes for our clients in Key Biscayne, FL.
Contact a Key Biscayne Probate Litigation Lawyer from Miami Family Law Group, PLLC today at 305-916-4053.
The Probate Process In Key Biscayne
Formal probate begins with a petition to open the estate, followed by the establishment of the personal representative, otherwise known as the executor or administrator of the will.
A personal representative cannot be a convicted felon, under 18, or be mentally or physically incapable of performing the duties required of the personal representative. The selection of the representative can itself be a cause for dispute between beneficiaries. If an agreement cannot be found, litigation can be used to make a decision and appoint a representative.
The probate process also includes taking an account of the value of the assets in the estate, paying any outstanding debts, and paying the required taxes. Once these steps are complete, if there are no disputes with the administration, the division of assets to beneficiaries can take place.
Litigation may be involved in the probate process if complications arise with creditors, assigning a personal representative, or if the will is disputed.
Personal Representative Duties
The personal representative is legally required to administer the estate in line with Florida law and act only in the best interests of the estate's beneficiaries. They may be liable to the estate beneficiaries for any injuries they incur due to the personal representative's mismanagement or irresponsibility.
Specific duties of the personal representative include the following:
- Identify and collate the descendant's assets subject to probate.
- Evaluate the financial worth of the assets.
- Provide notice of administration.
- Publish a notice to creditors publicly and serve notice to all known or readily ascertainable creditors.
- Oppose improper claims to the estate.
- File tax returns and settle tax liabilities.
- Pay any related expenses from the probate administration process.
- Negotiate and settle valid creditor's claims to the descendant's assets.
- Defend against any lawsuits against the estate from third parties.
- Hire qualified professionals to assist throughout the process (for example, accountants, appraisers, and attorneys).
- Distribute the descendant's assets to the rightful beneficiaries.
- Formally close the estate.
Grounds To Dispute A Will
Any beneficiary, relation of the descendant, or interested party involved in a descendant's estate has the right to file an objection to the probate process and begin litigation. The most common reason for litigation during the probate process is a disputed will.
To begin litigation to dispute a descendant's last will and testament, an individual must have legal standing to do so. In most cases, a will is disputed based upon undue influence, duress, fraud, a lack of mental capacity, or if the will is not up to legal standards.
A beneficiary may claim that a will was written under undue influence if they believe the descendant was wrongfully pressured or convinced to assign assets to someone that would not otherwise inherit such assets. Similarly, if any party involved in the will believes the document, or parts of the document, were not written by the descendant, this is grounds to dispute the will based on a suspicion of fraud.
If you are considering challenging a will, a probate lawyer can review the specific circumstances of your situation and advise you whether you have grounds to proceed with litigation in probate court.
The window in which beneficiaries can file a will dispute is small. In Florida, a dispute must be formally filed with the court within 90 days of receiving the notice of administration that probate has been initiated. An individual may have aired their concerns about the legitimacy of the will. Still, if these concerns have not been formally filed as a dispute with the court within the allotted time frame, they may lose the ability to challenge the probate process. Parties that will not benefit from the estate can contest a will until the case has been closed by the court.
What Should I Do If I Don't Think The Executor Is Managing The Estate Correctly?
The executor or personal representative appointed by the court to administer an estate has a responsibility to the beneficiaries to manage the process correctly and in line with the beneficiaries' best interests. Failure to properly administer an estate can be actionable, whether this is by mistake or intentional acts. Through litigation, the representative can be removed from their role or face direct legal action, depending on the nature of the mismanagement.
Problematic behavior from a personal representative could include wastage of funds, incurring excessive fees, failure to pay the correct taxes, and paying illegitimate claims to the estate. If you suspect a representative of improper handling of an estate, time is of the essence to act quickly and minimize any further damage they can cause.
If you or your family have lost assets or resources because of a representative's poor conduct, you may be able to pursue a lawsuit against them to recover your losses. Seek legal counsel from an experienced probate attorney to understand the options available to protect your assets from mismanagement and regain those you have lost.
I Don't Think My Family Member Was Mentally Fit To Write Their Will. What Can I Do?
A will is a legally binding document. As with any legal document, all signatories must be of sound mind and fully comprehend what they are signing for the contract to be valid. If you believe that your family member or loved one was not of sound mind when they executed the will, you may be able to dispute the will in probate court. Seek legal advice from an experienced probate attorney to understand if you have grounds to start litigation.
Although not impossible, it can be challenging to prove that an individual was not mentally competent to sign their will in the courtroom and a claim may need to be supported by medical records. However, your attorney could also help you to build a cause around a lack of testamentary capacity. This differs from general mental competency as it argues that the descendant did not have the mental ability to comprehend the assets in their estate and the family members who would normally inherit such assets. The standard of proof for lack of testamentary capacity is not as high as the standard to prove an individual lacked general competency.
If your family member or loved one did not have the mental capacity to execute their will, or someone took advantage of them and encouraged them to re-write their will when they were not fit to, this can be an extremely distressing realization. Unfortunately, this is something that does occur and is seen by some probate lawyers. However, this experience means that your attorney will know the best way to use litigation to contest the will and protect the rights of you and your loved ones.
After an individual's death, it can be challenging to retrospectively prove their state of mind in the courtroom. Evidence will mostly consist of medical records and accounts of the descendant's behavior around the time of the will writing. If you are beginning litigation based on mental capacity, seek an attorney with experience in probate litigation and securing successful outcomes in cases of this nature.
How Can A Probate Attorney Help?
Probate law is unique from other areas of the law in Florida. It can be complex and has a range of processes and procedures that must be adhered to for successful litigation. An experienced probate lawyer can correctly navigate these processes on your behalf to ensure your case is heard in court.
Additionally, managing litigation and worrying about presenting a compelling case in court can be overwhelming at such an emotional time following a bereavement. A probate attorney will do the hard work for you and build the strongest case possible for success in the courtroom. This allows you to focus on grieving for your loved one while your case is in safe hands.
Miami Family Law Group, PLLC probate attorneys provide expert legal services on probate matters. Our team has over 20 years of legal experience and has secured many successful outcomes in probate cases for our clients. Our probate lawyers pay personal attention to every detail of the cases they work on to give our clients the best possible chance at securing the outcome they desire from litigation.
Schedule A Case Review With Miami Family Law Group, PLLC
The outcome of a mismanaged probate process can be severe. In some circumstances, you could lose out on large amounts of an estate you were rightfully entitled to, with substantial implications for your future.
If you are concerned, feel that your interests are not protected, and your loved one's wishes are not respected, litigation can help. Contact Miami Family Law Group, PLLC today at 305-916-4053 to discuss your options with a reputable probate lawyer serving Key Biscayne, FL.
