Florida Probate Litigation Attorney
The death of a loved one is a difficult time for everyone involved. Unfortunately, it sometimes becomes even more difficult when a dispute breaks out among family members regarding the distribution of the assets of the decedent’s estate. Consequently, Florida has instituted a formal legal processfor handling just about any kind of estate dispute. The probate process can be complex and arcane for the uninitiated, especially if the estate’s finances are complex or if a large amount of assets are at stake.
In the event of a dispute, all interested parties are entitled to participate. An “interested party” is simply someone who stands to gain or lose depending on the outcome of the litigation. An interested party, for example, could even be someone who was not named in the will but who has a credible argument that they should have been.
Spouse’s Elective Share
The Florida elective share rule is designed to prevent the deceased from disinheriting a surviving spouse. The simplified version of the rule is that a surviving spouse is entitled to 30 percent of the decedent’s estate, regardless of who holds legal title to the property. The reality is more complex than that, but the “30 percent rule” is generally a good approximation. An elective share must be formally claimed by the disinherited spouse, and certain deadlines apply.
Grounds for Invalidating a Will
If a will is invalidated, the property will pass under Florida’s intestate succession laws, which distribute the property to relatives according to certain formal rules. Interested parties often attempt to invalidate as will. The most common grounds are:
- Undue Influence: Undue influence occurs when someone uses pressure, force, threats or even charm to convince the testator (the person making the will) to change its terms in favor of the person exerting the undue influence.
- Lack of Proper Formalities.In Florida, a will must be signed by the testator, and the signing must be witnessed by two other people, who must sign the will as witnesses.
- Lack of Capacity. The testator must be mentally capable of understanding the nature and extent of his assets as well as natural objects of his bounty and the effects of signing the will. Lack of capacity is a frequent issue when the testator suffered from dementia at the time the will was executed.
- Insane Delusion. Insane delusion occurs when the testator executes or changes his will on the basis of a delusion that is demonstrably untrue. This objection is similar to mental incompetency, except that it is based on a particular instance rather than a general diagnosis of incompetency.
- Fraud. Fraud occurs when the testator makes or changes a will based on deliberate misrepresentations made by a beneficiary or potential beneficiary of the will.
Assets Not Subject to Probate
Certain assets of the decedent are not subject to the probate process, including:
- Property held in a living trust (which goes directly to beneficiaries);
- Retirement accounts, if a beneficiary was named;
- Life insurance proceeds;
- Funds held in a payable-on-death (POD) bank account
- Pension distributions
- Property held in joint tenancy with right of survivorship or tenancy by the entirety
- Certain other items allowed under Florida law
Estate Executor Misconduct
The executor of the probate estate, also commonly referred to as the personal representative, is typically the person named in the decedent’s last will and testament. If there is no will, or if the will is invalidated, the personal representative will be appointed by the probate court, and will typically be a close relative. The personal representative is subject to certain fiduciary duties, and breach of fiduciary duty can lead to civil or even criminal liability.
The primary fiduciary duties of an estate executor are the duty of loyalty and the duty of care.In practical terms, that means that the executor must:
- Determine who inherits the property. This is much easier if the decedent left a will. If not Florida’s intestate succession rules apply.
- File the will with the appropriate probate court, regardless of whether there is any property subject to probate.
- Handle administrative details such as terminating credit cards; notifying banks, the Social Security Administration, the post office, Medicare, etc. of the decedent’s death.
- Establish an estate bank account, so that the account can receive funds that were owed to the decedent.
- Pay utility bills, mortgage payments, homeowner’s insurance premiums, creditors, funeral and burial expenses and taxes out of estate assets.
- Distribute of the property of the deceased in the manner required by law.
- Notify the probate court that all of these acts have been completed, and close the probate estate.
A beneficiary can oppose the appointment of an executor replaced, or seek to have him replace due to incompetence or fraud.
The LorenzoLawgroup handles the following types of cases, among others:
- Florida probate litigation
- Trust litigation
- Florida estate planning
- Probate and trust issues
- Trust and estates law
- Estate administration
- Guardianship issues
Our practice is not limited to litigation — we also handle non-contentious matters such as drafting wills, setting up trusts, and providing estate planning advice.
Contact Lorenzo Law Today
Not all law firms are created equal. The last kind of law firm you need is one that dabbles in various areas of law — defending a drug dealer one day and drafting an M&A agreement the next. In contrast with these “jack of all trade” law firms, Lorenzo Law devotes a a major portion of our practice to probate and related matters. Jose Lorenzois a probate litigation attorney who knows his way around the Florida court system and is ready to fight for your rights.
If you anticipate the need for probate litigation anywhere in Florida, our experienced legal team is ready to step into the ring and fight for you. We maintain offices in Coral Gables and Ft. Lauderdale, and we handle cases throughout the state of Florida. Call us at (305) 999-5411,complete our online intake form, email us at [email protected] visit one of our offices. We look forward to hearing from you.