Florida Probate Litigation Attorney

A Florida probate litigation attorney handles contested estates — the cases a judge has to decide — rather than routine administration. Will contests, trust disputes, executor and trustee misconduct, and lifetime transfers that emptied the accounts before anyone died. These are decided on strict deadlines that end cases before anyone reaches the merits.

Jose M. Lorenzo, Jr. handles contested probate and trust matters in all 67 Florida counties, in English and Spanish. Free initial consultation.

Updated August 6, 2026. The deadline that decides most Florida cases is §733.212(3) — 3 months from service of the notice of administration. Three calendar months, not 90 days.

What is probate litigation?

Probate litigation is any estate dispute a court has to decide. Ordinary probate administration is petitions, inventories and routine filings. Litigation begins when people with standing disagree about a document, about money, or about the person in charge.

In Florida the disputes have a formal procedural name: they are adversary proceedings. Under Florida Probate Rule 5.025, certain matters are adversary by rule — will contests, revocation of probate, removal of a personal representative, determination of beneficiaries, and construction of a will among them — and any other proceeding can be declared adversary on motion or by the court. Once a matter is adversary, it runs on the Rules of Civil Procedure: formal service, pleadings, discovery, depositions, subpoenas, summary judgment, trial.

That is the practical difference. Administrative probate is paperwork. An adversary proceeding is a lawsuit that happens to be filed inside a probate case.

When do you need a probate litigation lawyer?

Six situations warrant immediate counsel:

• You have been served with a notice of administration and you question whether the will is valid.
• The main beneficiary is the person who arranged for the will to be written.
• A personal representative will not account for the assets.
• A trustee will not confirm the trust exists, or sends accountings nobody can read.
• Accounts were emptied before the death — joint account added, beneficiary changed, deed signed.
• The exploitation is happening right now and the person is still alive.

If you recognize the last one, read the exploitation injunction section first. It is the only remedy on this page that works before a death, and it costs nothing to file.

What types of probate disputes are there in Florida?

Dispute	What is contested	Statute
Will contest	The document itself — capacity, undue influence, execution formalities, forgery	§732.5165
Revocation of probate	A will already admitted, challenged before discharge	§733.109
Removing a personal representative	Conduct after appointment — waste, conflicts, refusal to account	§733.504
Surcharge of a personal representative	Making the fiduciary personally repay a loss	§733.609
Trust contest	A trust procured by influence, fraud or duress	§736.0406
Breach of fiduciary duty	Trustee accounting, distributions, or silence	§736.0813
Removing a trustee	Serious breach, unfitness, persistent failure	§736.0706
Elective share	A surviving spouse’s 30% claim	§732.2065
Determination of beneficiaries	Who the heirs actually are, when that is disputed	§733.105
Lost or destroyed will	Establishing a will nobody can produce	§733.207
Exploitation of a vulnerable adult	Money moved while the person was alive	§825.103
Civil theft	Treble damages against whoever took it	§772.11
Tortious interference with an expectancy	An inheritance destroyed by someone else’s conduct	Common law

Who can bring a probate dispute in Florida?

Only an interested person — someone reasonably expected to be affected by the outcome.

You can usually contest even if you are not named, provided you would inherit without the will. Being written out is not disqualifying. It is frequently the evidence. Stepchildren generally lack standing unless they were legally adopted or named in an earlier will.

What if you were disinherited?

Being disinherited is not itself a claim. Florida does not police generosity, and a parent is free to leave you nothing. The question is never whether the will cut you out — it is how the will came to say that. A change made in the last year of life, favoring the person who was managing the medications and driving to the lawyer’s office, is a different document from one signed in good health five years earlier.

How long do you have to contest a will in Florida?

Three months from service of the notice of administration, under §733.212(3). Three calendar months, not 90 days.

The clock runs from the date of service — not the date of death, not the date you found out — and it runs separately for each person served. It extends only for estoppel based on a misstatement by the personal representative, and never past the earlier of final discharge or one year after service.

If you were never served, the clock never started.

Every other clock that decides Florida estate cases

Clock	Period	Statute
Objection after service of the notice of administration	3 months	§733.212(3)
Petition to revoke probate	Before final discharge	§733.109
Creditor claim after first publication	3 months	§733.702
Creditor claim, absolute outer bar	2 years from death	§733.710
Action against a trustee over a matter disclosed in an accounting	6 months from receipt	§736.1008
Contesting a revocable trust	Not until it becomes irrevocable or the settlor dies	§736.0207
Custodian’s duty to deposit an original will	10 days after learning of the death	§732.901

Can you stop a will from being admitted before it happens?

Yes — file a caveat. This is the single most useful filing on this page and almost nobody knows it exists.

Under §731.110, an interested person who fears an estate will be opened without their knowledge may file a caveat with the clerk. Once a caveat is on file, the court may not admit a will to probate or appoint a personal representative without formal notice to you.

What that buys:

• You find out before the estate is opened, not three months after.
• You get formal notice, which means you get the chance to object before an order exists to undo.
• An interested person may file before the death. A creditor may only file after.
• A pre-death caveat expires two years after filing. If the person is still living at that point, it has to be filed again. This is the detail people miss.

Florida courts enforce the bar strictly. Once a caveat is on file, the otherwise permissive formal-notice provision becomes mandatory, and a will contest has to be resolved before letters of administration issue. Rocca v. Boyansky, 80 So. 3d 377 (Fla. 3d DCA 2012); Tien v. Estate of Tien, 337 So. 3d 107 (Fla. 3d DCA 2022). Where caveators challenged a will for undue influence, the trial court had to rule on that challenge before admitting the will or appointing the personal representative it named. Grooms v. Royce, 638 So. 2d 1019 (Fla. 5th DCA 1994).

Filing is straightforward. Under Florida Probate Rule 5.260 the caveat names the person whose estate is or will be administered, gives the last four digits of their social security number or year of birth if known, states your interest, and gives your name and mailing address. If you live outside Florida you must designate a resident agent in the county — unless a Florida-admitted attorney signs the caveat for you.

If you have reason to think a will you have never seen is about to be filed, a caveat costs a fraction of what a revocation petition costs later. More detail: caveats in Florida probate.

What are the grounds for contesting a will?

Not that the split feels unfair. §732.5165 is one sentence:

“A will is void if the execution is procured by fraud, duress, mistake, or undue influence.”

Four grounds, plus one from elsewhere in the code:

• Undue influence — someone in a position of trust overbore the testator’s free will. The most common ground by a wide margin.
• Lack of testamentary capacity — the testator did not understand the nature of the act, the extent of the property, or the natural objects of their bounty. Measured at the moment of signing, which is why a dementia diagnosis is evidence and not proof.
• Improper execution — §732.502 requires signature at the end, before two attesting witnesses who sign in the presence of the testator and of each other.
• Fraud, duress or mistake — a forged signature, a page swapped after execution, a document the signer was told was something else.
• Revocation — a later will or codicil superseded the one being offered.

Two features change strategy in real cases:

• Only the part so procured fails. “Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid.” A contest does not have to be all-or-nothing. Attacking the one clause that changed is often the stronger case.
• A procured revocation is also void. If a good will was destroyed under pressure, that act is attackable on its own, and an earlier will can revive.

What if the will was forged?

Forgery is fraud in the execution and voids the instrument. It is also the ground that most often turns on an expert rather than on family testimony — a questioned-document examiner comparing the signature against known exemplars from the same period. The practical problem is usually access: the original must be produced, because a forgery case cannot be run off a photocopy. That is one reason the §732.901 ten-day deposit duty matters, and one reason a caveat filed early is worth more than a subpoena filed late.

How do you prove undue influence in Florida?

Often you do not have to prove it outright. That single rule decides more Florida cases than any other in the probate code.

The starting position is against you. Under §733.107(1), the proponent establishes proper execution and attestation, and the burden then moves to the challenger. That is why most contests are uphill.

Then subsection (2) reverses it. Where the presumption of undue influence applies, it is a presumption that shifts the burden of proof under ss. 90.301–90.304, “adopted to implement the public policy of this state against abuse of fiduciary or confidential relationships.”

The burden shift, step by step

1. The proponent proves the will was properly executed and attested. The burden of persuasion moves to the challenger. §733.107(1).
2. The challenger establishes three things: that the beneficiary stood in a confidential relationship with the decedent; that the beneficiary was substantially benefited by the will; and that the beneficiary was active in procuring it.
3. The presumption arises and the burden shifts back. The favored beneficiary must now disprove undue influence. The family stops having to prove what happened behind a closed door.

The seven Carpenter factors

On the third element — active procurement — Florida uses the criteria set out by the Florida Supreme Court in In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971):

1. Presence of the beneficiary at the execution of the will
2. Presence of the beneficiary when the testator expressed a desire to make a will
3. Recommendation by the beneficiary of the attorney who drew the will
4. Knowledge of the contents of the will by the beneficiary before execution
5. Giving of instructions on preparation of the will by the beneficiary to the drafting attorney
6. Securing of the witnesses by the beneficiary
7. Safekeeping of the will by the beneficiary after execution

You do not have to prove all seven. The court said so explicitly, and added that it would be the rare case in which all of them were present. The list is not exclusive either — it is a set of warning signals, and other conduct can supplement it. In Carpenter itself four factors were enough to support an inference of active procurement.

That matters when you are assessing a case at the outset. Families frequently assume they have nothing because they cannot prove every item on the list. Four is a case.

What evidence actually decides it

• Medical records for the twelve months around signing — to establish dependence, not incapacity.
• Who made the appointment, who drove, who sat in the room, who paid.
• Bank and brokerage statements — new joint accounts, new signature cards, new powers of attorney.
• The drafting attorney’s file. Frequently decisive and frequently obtainable — see below.
• Isolation — changed locks, blocked calls, visitors turned away.
• Timing. A will changed weeks after a hospital discharge, favoring the person who managed it, is a different document from one signed in good health five years earlier.

If those facts are present you should hear it at the first meeting. If they are not, expect a harder case — and you should hear that at the first meeting too, not after the retainer is signed.

Can you get the drafting attorney’s file, or does privilege block it?

In a contest between people claiming through the same decedent, privilege generally does not block it.

Florida’s evidence code contains an exception at §90.502(4)(b): there is no lawyer-client privilege for a communication relevant to an issue between parties who all claim through the same deceased client, regardless of whether they claim by testate or intestate succession. A will contest is the textbook case.

Florida courts apply it directly. The exception authorizes a drafting attorney to testify about the decedent’s intent where competing claimants both claim through that decedent. Caputo v. Nouskhajian, 871 So. 2d 266 (Fla. 5th DCA 2004); Vasallo v. Bean, 208 So. 3d 188 (Fla. 3d DCA 2016).

What that opens up: the drafter’s intake notes, the file memoranda, the billing records showing who called and who was in the room, the earlier drafts, and the drafter’s own testimony about capacity on the day. In cases where the family has no direct evidence of what happened, this file is frequently where the case is won or lost.

Two limits worth knowing before you ask for the file

It is not a key to the whole file. The exception reaches communications relevant to an issue actually in dispute — not everything the decedent ever told a lawyer. And every competing party must be claiming through the same decedent; someone asserting an independent claim cannot use it. Waiving privilege as to the drafting attorney does not waive it as to unrelated counsel. In re Marden’s Estate, 355 So. 2d 121 (Fla. 3d DCA 1978). Courts frequently review the material in camera before ordering it produced.

It does not reach the personal representative’s own lawyer. This is the distinction that trips people up. §90.502(4)(b) opens the decedent’s pre-death communications with the drafting attorney. §90.5021, the fiduciary lawyer-client privilege, separately protects communications between the personal representative or trustee and estate counsel after the death — and it provides that only the fiduciary, not the beneficiaries, is the client. Being a beneficiary does not let you read the personal representative’s legal advice.

What is an expert witness for in a probate case?

Three kinds show up in Florida contested estates:

• Capacity experts. A geriatric psychiatrist or neuropsychologist reviewing the medical record and opining on the decedent’s cognition at or near the date of signing. Because capacity is measured at the moment of execution, the useful opinion is a retrospective one built from contemporaneous records — office notes, MoCA or MMSE scores, hospital discharge summaries, medication changes.
• Questioned-document examiners. For forgery, altered pages, and substituted signature pages.
• Forensic accountants. For tracing — following money out of accounts through transfers, gifts, new joint titling and reimbursements, and reconstructing what the estate should have held. Also the standard tool for proving up a surcharge claim against a fiduciary.

Expert cost is one of the two biggest variables in what a contested estate ends up costing. It is also one of the reasons the burden shift matters so much: a case where §733.107(2) applies often needs less expert work than one where it does not.

How much does a Florida probate litigation attorney cost?

The question most people are actually asking is whether they have to pay anything up front. That is a fair question and it has a direct answer.

How probate litigation is billed

Arrangement	When it fits	How it works
Hourly with a retainer	Defending a fiduciary; cases with no identifiable fund to recover	Deposit against time billed, replenished as the case runs
Contingency	Recovering money or property — undue influence, exploitation, civil theft, surcharge	No fee unless there is a recovery. The percentage is set in a written agreement before any work begins.
Hybrid	Strong facts, uncertain collectability	Reduced hourly plus a smaller percentage of recovery
Flat fee	A discrete task — a caveat, an objection, a single petition	One price, agreed in advance

Contingency is permitted in Florida probate, estate and trust litigation. Rule Regulating The Florida Bar 4-1.5(f)(1) allows a fee to be contingent on the outcome, and the categorical prohibitions in 4-1.5(f)(3) reach only two things: fees in domestic relations matters contingent on securing a divorce or on the amount of support or property settlement, and contingent fees for defending a criminal case. Probate is on neither list. That is why people assume it is unavailable here — they are thinking of the divorce rule.

What the rule does require is a written agreement stating the method by which the fee is determined, including the percentages that apply on settlement, at trial and on appeal, plus the general standard that the fee not be excessive. The heavier machinery people associate with contingency work — the statement of client’s rights, the specific contract language — comes from Rule 4-1.5(f)(4), which applies to personal injury, property damage and wrongful death claims. It does not apply to probate matters.

As a practical matter contingency usually fits where the case is about getting money or property back, and usually does not fit where the case is about defending a fiduciary’s conduct.

Which one applies to your case is a case-by-case decision, and it is one of the things a first conversation is for. It turns on what is being recovered, whether the money can actually be collected once a judgment exists, and whether you are pursuing a claim or defending one. Whatever the arrangement, it is put in writing and agreed before any work starts. There is no charge for the conversation that sorts out which applies.

Costs are separate from fees

Filing fees, service, deposition transcripts, records requests and expert fees are costs, not fees, and they exist under every arrangement above. Who advances them, and when, is settled in writing at the outset rather than left to be discovered later.

What drives the number

• The volume of medical and financial records that must be obtained and read
• Whether a guardianship or a power of attorney ran alongside
• How many beneficiaries must be served, and how many are represented
• Whether the estate holds Florida real property, a closely held business, or out-of-state assets
• Whether the fight is over the will alone or over lifetime transfers as well
• Whether the personal representative is also the favored beneficiary, which merges two disputes into one
• Whether §733.107(2) shifts the burden — a case where it does is a different economic proposition from one where it does not

What you will not read here is an estimate of your odds or a success rate. Rule 4-7.13 prohibits promises about outcomes, and no honest lawyer prices a case they have not seen.

Who pays the legal fees in a Florida probate dispute?

Not always the person who brings it. This is the question that decides whether a case is worth running.

§733.106 gives the court four separate powers:

• Costs may be awarded as in chancery actions in all probate proceedings.
• A good-faith will proponent is protected. A person nominated as personal representative, or who offered a will in good faith, may recover costs and fees from the estate “even though probate is denied or revoked.”
• An attorney who has rendered services to an estate may be awarded reasonable compensation from it.
• The court decides where the money comes from — “from what part of the estate they shall be paid” — and may assess fees against an individual beneficiary’s share, weighing each party’s level of participation and whether anyone unjustly increased the cost of the proceedings.

That last power matters more than it reads. A beneficiary who obstructs, delays or litigates unreasonably can end up paying for it out of their own share. It cuts both ways, and it is a real consideration before filing as well as before defending.

Can you stop financial exploitation before the person dies?

Yes, and most families are never told this remedy exists.

§825.1035 creates an injunction for protection against exploitation of a vulnerable adult — a civil order, obtained in the circuit court, while the person is still living.

• There is no filing fee. The statute is explicit: “the clerk of the circuit court may not assess an initial filing fee or service charge for petitions filed under this section.”
• It can be granted ex parte, without the other side present, where the court finds immediate danger, likelihood of irreparable harm, a substantial likelihood of success, and that the injury outweighs the harm to the respondent.
• A temporary injunction can freeze assets and lines of credit, restrain further acts of exploitation, award exclusive possession of the dwelling, and prohibit contact. It runs up to 15 days, extendable once for up to a further 30.
• A final injunction can order the money returned.

Who can file: the vulnerable adult; their guardian; a person or organization acting on their behalf with consent; an agent under a valid durable power of attorney; or someone simultaneously petitioning for emergency temporary guardianship.

My sibling is taking money from our parent’s account. What do I do?

This is the most common version of the question, and the answer changes entirely depending on whether the parent is alive.

If they are alive: the exploitation injunction above is the fastest route, and it is free to file. It can freeze the accounts in days. A will contest cannot help you, because there is no estate yet. Report to Adult Protective Services as well — but understand that a report is not a remedy, and it does not stop a transfer.

If they have died: the remedies change and they stack. The instrument is void under §732.5165 or §736.0406. §772.11 gives a person injured by a violation of §825.103(1), proved “by clear and convincing evidence,” a claim for threefold the actual damages. And §825.103 makes the conduct a felony graded by value — third degree under $10,000, second degree to $50,000, first degree above.

Where money was moved into someone else’s name, a court can also impose a constructive trust — an equitable remedy treating the person holding the property as trustee for whoever it should have gone to. It is the standard way to reach a house, a brokerage account or a policy that was retitled during the last year of life.

Can you sue for tortious interference with an inheritance in Florida?

Yes, but it is a fallback, not a first move.

Florida recognizes tortious interference with an expected inheritance. The elements are the existence of an expectancy; intentional interference with it through independently tortious conduct such as fraud, duress or undue influence; reasonable certainty that the expectancy would have been realized but for the interference; and damages.

Two limits matter more than the elements.

You must exhaust the probate remedies first. If adequate relief is available in the probate proceeding, that remedy has to be used before the tort claim can be pursued. DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981). Where a wrongfully procured will was admitted and you had notice and a chance to contest it but did not, the tort claim is barred. The claim survives where probate could not have reached the loss — where the fraud was not discoverable until after probate closed, or where the asset sat in a revocable trust outside probate jurisdiction altogether. Schilling v. Herrera, 952 So. 2d 1231 (Fla. 3d DCA 2007); Davison v. Feuerherd, 391 So. 2d 799 (Fla. 2d DCA 1980).

You cannot bring it while the person is still alive. Florida has declined to allow the tort to be prosecuted before the death of the person whose estate is at issue. Claveloux v. Bacotti, 778 So. 2d 399 (Fla. 2d DCA 2001); Carlton v. Carlton, 575 So. 2d 239 (Fla. 2d DCA 1991). If the transfers are happening now, the remedy is the §825.1035 injunction above, not this.

What is estate litigation, and how is it different?

Estate litigation is the wider term. Probate litigation happens inside the probate case. Estate litigation is every dispute arising from a death, including the ones that never touch the probate file:

• Lifetime transfers — a deed, a retitled account, a changed beneficiary designation. These never enter the estate, so attacking the will does not reach them.
• Non-probate assets — life insurance, retirement accounts, payable-on-death accounts.
• Homestead — Florida’s constitutional protection can override the will entirely.
• Elective share proceedings for a surviving spouse.
• Civil theft and exploitation claims against whoever took the money.

Families routinely arrive convinced the fight is about the will, when the will is the one document that does not matter. Working out which it actually is takes one conversation.

What counts as executor or trustee misconduct in Florida?

Florida does not use the word “executor” — the statutory term is personal representative — but the conduct people mean by it is governed precisely.

The standard the fiduciary is held to

Under §733.602, a personal representative is a fiduciary who must observe the standards of care applicable to trustees, and must settle and distribute the estate as expeditiously and efficiently as is consistent with the best interests of the estate, using the authority conferred for the best interests of interested persons. Acting in their own interest instead is the definition of the breach.

What that looks like in practice: selling estate property to themselves or a relative; paying their own claim ahead of others; using estate funds for personal expenses; refusing to distribute while collecting fees; letting property sit uninsured or unmaintained; or simply going silent for a year.

Surcharge — making them pay it back

Removal takes them out of the job. Surcharge makes them personally repay the loss. They are separate remedies and you usually want both.

§733.609 makes a personal representative who breaches a fiduciary duty liable to interested persons for damage or loss resulting from the breach, and provides that in a proceeding for breach of fiduciary duty the court shall award taxable costs as in chancery actions, including attorney’s fees. For trustees, §736.1001 gives the court a menu: compel performance, enjoin a breach, compel redress by payment of money or restoration of property, order an accounting, reduce or deny compensation, void an act, impose a lien or constructive trust, or remove the trustee.

Note the fee provision. §733.609 says the court shall award taxable costs as in chancery actions, including attorney’s fees, in all actions for breach of fiduciary duty or challenging the exercise of a personal representative’s powers. The award is mandatory; what the court retains discretion over is the source — payment out of a party’s interest in the estate, a judgment satisfied from their other property, or both.

Read that carefully before filing, because it runs in both directions. A personal representative who defends a non-frivolous surcharge action and wins can have that defense paid by the estate. Valleskey v. Flagship National Bank of Miami, 508 So. 2d 541 (Fla. 3d DCA 1987).

Two further limits keep these claims honest. Liability is capped at the actual damage or loss caused by the breach — a surcharge cannot leave the claimant better off than if the breach had never happened. Brush v. Coppelli, 407 So. 3d 518 (Fla. 5th DCA 2026). And a personal representative does not breach a duty merely by opposing a claim that later turns out to be valid, provided there was some reasonable basis for the objection. Landon v. Isler, 681 So. 2d 755 (Fla. 2d DCA 1996).

How do you remove a personal representative or a trustee?

Two statutes, two different tests.

Removing a personal representative

Twelve enumerated grounds under §733.504. The ones that arise in real cases:

• Failure to comply with a court order, unless superseded on appeal
• Failure to account for a sale, or to produce the estate’s assets when required
• Wasting or maladministration of the estate
• Holding or acquiring interests adverse to the estate that interfere with administration
• Failure to give bond; conviction of a felony; incapacity; removal of domicile from Florida where domicile was a qualification

Note the fourth. A personal representative who is also a beneficiary, and who is buying estate property or preferring their own claim, may be removable on conflict grounds with no allegation of dishonesty at all.

Removing a trustee

Under §736.0706, on the application of the settlor, a cotrustee or a beneficiary: for a serious breach of trust; where lack of cooperation among cotrustees substantially impairs administration; where unfitness, unwillingness or persistent failure to administer effectively means removal best serves the beneficiaries; or on a substantial change of circumstances with a suitable successor available.

Who runs the estate in the meantime?

A curator — but the timing matters, and it is commonly misunderstood.

Under §733.501 a curator is a temporary fiduciary appointed to take charge of and preserve the estate’s assets until letters of administration are issued. The classic use is a contested appointment: two people are fighting over who should be personal representative, nobody has letters yet, and the assets need someone responsible in the meantime. Where there is significant danger that property will be wasted, destroyed or removed from the court’s jurisdiction, the court may appoint without notice.

What a curator is generally not for is running alongside a personal representative who already holds letters. Florida courts have held that a curator serving simultaneously with an appointed personal representative is improper, because the statutory scheme contemplates appointment before letters issue. Gordin v. Estate of Maisel, 179 So. 3d 518 (Fla. 4th DCA 2015). If a personal representative is already in place and misbehaving, the tools are removal under §733.504 and surcharge under §733.609 — not a curator. And unsupported allegations will not get one appointed over the objection of a named personal representative. In re Estate of Miller, 568 So. 2d 487 (Fla. 1st DCA 1990).

What if the original will is lost or destroyed?

You can still establish it, but the bar is deliberately high.

Under §733.207, any interested person may establish the full and precise terms of a lost or destroyed will. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, by one disinterested witness.

Disinterested is a real requirement. A witness with a financial stake in the outcome does not count, and testimony that gestures at the will’s contents without proving them precisely is not enough. Nor can consents and waivers signed by the heirs be substituted for the statutory proof. Pilak v. Reigel, 428 So. 3d 625 (Fla. 5th DCA 2026). Under Florida Probate Rule 5.510, establishment and probate happen in one proceeding, each witness’s testimony is reduced to writing and filed, and formal notice must go to everyone who would inherit if the will did not exist.

The presumption of revocation

Where the original was last known to be in the testator’s possession and cannot be found after death, Florida presumes the testator destroyed it intending to revoke it, and the burden of proving otherwise falls on whoever offers the will. In re Washington’s Estate, 56 So. 2d 545 (Fla. 1952). This is not a soft inference — it compels a finding of revocation unless the proponent produces competent, substantial evidence the other way. Estate of Parson, 416 So. 2d 513 (Fla. 4th DCA 1982).

What does and does not rebut it is fairly well mapped:

• Not enough: that the testator had become forgetful, that they remained fond of the beneficiary, or that the home was generally accessible to unknown people. Balboni v. LaRocque, 991 So. 2d 993 (Fla. 4th DCA 2008).
• Enough: circumstantial evidence that a specific person had access to the home, had a financial interest in the will disappearing, and was in serious conflict with the testator. Lonergan v. Estate of Budahazi, 669 So. 2d 1062 (Fla. 5th DCA 1996).

Two practical consequences. A photocopy is worth a great deal — it halves the witness requirement. And if someone else had custody of the original and it has now vanished, that is a materially different case from one where the testator kept it, because the presumption may not arise at all. Say so early. Note also that even where the presumption does not arise, the §733.207 witness requirements still apply.

Do Florida probate disputes go to mediation?

Almost always, and most contested estates end there rather than at trial.

Florida circuit courts routinely order probate and trust disputes to mediation before setting a case for trial. The authority comes from two places rather than from a single probate rule. Once a matter is designated adversary, Florida Probate Rule 5.025(d)(2) provides that the proceeding is conducted as nearly as practicable like a civil suit and that the Florida Rules of Civil Procedure govern (except rule 1.525) — which brings in the mediation rules at Fla. R. Civ. P. 1.700 and following. Separately, §44.102 authorizes court-ordered mediation in civil actions and requires referral on one party’s request in an action for monetary damages. Individual circuits then implement the referral procedure by local administrative order.

Why it works better in estate cases than in most litigation:

• The money is already in one pot. Unlike a personal injury case, there is a fixed fund and the argument is about division. That is a structurally easier thing to settle.
• Fees come out of the same pot. Under §733.106 the cost of fighting reduces what everyone receives. Both sides can usually be shown the arithmetic.
• The relationships continue. Siblings who litigate to judgment generally do not speak again. Many clients weigh that.
• Confidentiality. A will contest tried to judgment puts the medical records, the family history and the financial detail in a public court file.

Family settlement agreements

Florida also allows the interested persons to settle it among themselves. §733.815 provides that interested persons may agree among themselves to alter the interests, shares or amounts to which they are entitled, in a written contract executed by all who are affected by its provisions. The personal representative must still abide by the terms, subject to obligations to creditors and to the estate’s administration.

In practice this is how a great many contests actually resolve: not with a ruling that the will was void, but with a written agreement that redistributes shares and ends the case.

Is there a jury in a Florida will contest?

No. Florida probate proceedings are in rem (§731.105) and are tried to the judge. There is no right to a jury in a will contest, a trust contest, a removal proceeding or a surcharge action.

The reason is historical. Article I, section 22 of the Florida Constitution preserves the jury right only for matters triable by jury at common law before 1845, and probate originated in the ecclesiastical and equity courts rather than at common law. In re Estate of Howard, 542 So. 2d 395 (Fla. 1st DCA 1989). A Florida court found no error in striking a jury demand on the undue influence issue in a will contest. Allen v. Estate of Dutton, 394 So. 2d 132 (Fla. 5th DCA 1980). Trust matters sit in the exclusive jurisdiction of equity, and a surcharge claim against a trustee carries no jury right even though it seeks money. Mastriana v. Brown Brothers Harriman Trust Co., 410 So. 3d 1223 (Fla. 4th DCA 2025).

This changes how a case is prepared. There is no jury to persuade with narrative; the audience is a probate judge who reads the same statutes every week and has seen the pattern before. Documents outweigh testimony. A clean chronology of the bank records and the medical file does more work than a compelling witness.

Does a no-contest clause stop you in Florida?

No. §732.517 is a single sentence: a provision in a will purporting to penalize any interested person for contesting the will, or instituting other proceedings relating to the estate, is unenforceable.

In terrorem clauses are enforceable in many states. They are not enforceable here, in wills or in trusts. The clause may still be sitting in the document — drafters copy them from out-of-state forms constantly — and it may still read as though it works. It does not.

This is the single most common reason people never make the call. Whatever the risks of contesting a will in Florida, forfeiting what you were already left is not among them.

What are your rights as a beneficiary?

Under a will: to be served with the notice of administration and the inventory; to an accounting; to object within the §733.212(3) window; and to petition for removal.

Under a trust, considerably more than most beneficiaries are ever told. §736.0813 opens with a duty, not a discretion: “The trustee shall keep the qualified beneficiaries of the trust reasonably informed of the trust and its administration.” Within 60 days of accepting the trust, the trustee must give notice of the acceptance and their name and address; within 60 days of the trust becoming irrevocable, notice of its existence, the settlor’s identity, and your right to request a copy of the trust instrument; and a trust accounting at least annually.

A trustee who will not tell you the trust exists is already in breach of the statute’s first sentence.

⚠️ The trap that runs the other way: §736.1008 bars a claim over any matter “adequately disclosed in a trust disclosure document” unless suit is commenced within 6 months after receipt. Read every accounting the week it arrives. Filing it in a drawer does not stop the clock.

Who are the heirs when that itself is disputed?

Where there is no will, or where the will does not dispose of everything, the question of who inherits can be litigated on its own. Under §733.105, when it appears that an estate should be distributed to beneficiaries who are not adequately identified, the court may determine the beneficiaries — and the proceeding is adversary under Probate Rule 5.025.

This comes up more than the statute’s plain language suggests: unacknowledged children, second and third marriages, foreign heirs who cannot easily prove the relationship, and estates where a purported spouse’s marriage is itself contested. Florida does not use an affidavit of heirship the way some states do — an actual court determination is what conveys certainty here.

Where is your case heard?

Florida probate is filed in the county where the decedent resided, and heard by the circuit court for that county. The practice is statewide — the same statutes, the same deadlines — but the local filing rules and courthouse procedure differ by circuit, and those differences cost families weeks.

County	Circuit	Page	What that county turns on
Miami-Dade	Eleventh	Miami probate litigation attorney	Ancillary administration, foreign families, §733.304 qualification
Broward	Seventeenth	Fort Lauderdale probate litigation attorney	Fee objections, the elective share, Local Rule 10A
Palm Beach (north)	Fifteenth	West Palm Beach probate litigation attorney	Five clerk locations, the P.O. Box 4667 will rule
Palm Beach (south)	Fifteenth	Boca Raton probate litigation attorney	Domicile fights, part-year residents, ancillary probate
Hillsborough	Thirteenth	Tampa probate litigation attorney	Acknowledgment of venue, no e-filing of original wills
Pinellas & Pasco	Sixth	Pinellas County probate litigation attorney	Two counties, two clerks, §825.1035 injunctions
Orange & Osceola	Ninth	Orlando probate litigation attorney	Central Florida retirees, out-of-state beneficiaries
Duval	Fourth	Jacksonville probate litigation lawyer	Military and out-of-state estates

Contested matters are handled in all 67 Florida counties, in English and in Spanish, whether or not a page exists for your circuit.

Can you handle this if you live out of state or overseas?

Yes, and a large share of contested Florida estates involve someone who does. Florida real property draws in families who live nowhere near it — retirees whose children are in New York or Bogotá, and second homes owned by people domiciled somewhere else entirely.

Two things follow. First, most of a contested estate is conducted by filing, deposition and hearing, and Florida circuits now hold the great majority of probate hearings remotely; appearing in person is the exception. Second, §733.304 restricts who may serve as a personal representative when they are not a Florida resident, which is itself a recurring ground for contested appointments in Miami-Dade. If the person who filed does not qualify, that is a challenge available to you independent of the will’s validity.

What does “probate litigation specialist” mean in Florida?

It is a regulated term. The Florida Bar certifies in Wills, Trusts and Estates, and Rule 4-7.14 permits specialist or expert only where the claim is objectively verifiable — by that certification, or by the lawyer’s training, record and substantial involvement in the area.

What is verifiable about this office:

• Jose M. Lorenzo, Jr., Florida Bar No. 107002, licensed and in active practice in Florida since 2005. Anyone can confirm it free in The Florida Bar’s member directory.
• Practice concentrated in probate, wills, trusts and the transfer of Florida real property.
• Solo practice: the same person answers the phone, files the petition and appears in court.
• Service in English and Spanish, in all 67 Florida counties.

What you will not read here is that this is the best probate litigation law firm in Florida. Rule 4-7.13 prohibits unsupported comparisons.

What to do this week

If the person is alive and money is still moving, the exploitation injunction is the urgent one. It costs nothing to file and can be heard in days.

If you think a will is about to be filed and you will not be told, file a caveat under §731.110.

If you have been served with a notice of administration, the clock in §733.212(3) is already running and does not pause while you decide. Bring three things:

1. The will, and any earlier will or codicil you have ever seen.
2. The notice, with its date of service — the date on the envelope sets the deadline.
3. Anything showing who was near the decedent in the final year. Calendars, texts, bank statements, the name of the person who drove to the lawyer’s office. That last category decides more cases than the will itself.

Speak to a probate litigation lawyer directly. Jose M. Lorenzo, Jr. — (305) 224-6811. Free consultation in English or Spanish, in all 67 Florida counties. You can also write from the contact page.

For the law on challenging a will in detail, see contesting a will in Florida. For pre-death transfers, see challenging transfers before death. Esta página en español: impugnar un testamento en Florida.

About this page. Author and reviewer: Jose M. Lorenzo, Jr., Florida Bar No. 107002, in practice in the state since 2005. Every statute and case cited was verified against the Florida Statutes and Florida case law on August 23, 2026.

This page offers general information about Florida law and does not constitute legal advice for a specific case. Reading it does not create an attorney-client relationship. Every estate turns on its own facts, and the law changes.