FLORIDA PROBATE ATTORNEY
Administration & Litigation Throughout the State of Florida
FLORIDA PROBATE & TRUST LITIGATION
Marc J. Soss, Esq. | 941-928-0310
CONTESTED FLORIDA PROBATE PROCEEDINGS:
Representation of Florida Personal Representatives and Probate Beneficiaries in the
following areas:
CONTESTED FLORIDA TRUST PROCEEDINGS:
Representation of Trustees and Trust Beneficiaries in the following areas:
Sarasota, Bradenton, Venice, Osprey, University Park, Ellenton, Lakewood Ranch, Ft. Myers and Naples Florida's large elderly populations have made the Florida Gulfcoast a hot bed for exploitation of the elderly, abuse, and disputes among beneficiaries and fiduciaries (Personal Representatives and Trustees). These disputes involve both Florida Will's and Trust's and take the form of a "Florida Will Contest" and "Florida Trust Contest" and civil actions brought by family member's seeking damages for interference with their rights of inheritance, claims of exploitation or undue influence on an elderly person. An individual with standing can raise both procedural and substantive objections to a decedent's Will and Trust. I have been representing individuals (beneficiaries, disinherited family members, ...) in Southwest Florida (Sarasota, Manatee, Lee, and Collier County) in Florida Will and Trust contests for two decades.
Valid grounds for a Florida Will Contest or Florida Trust Contest include claims that it was improperly executed (the testator did not sign it), the testator lacked testamentary capacity (he/she did not understand what they were doing), it contains a mistake, or it is the result of fraud, undue influence, duress, or insane delusion. These claims can be broken down into procedural objections and substantive objection.
A procedural objection will include:
(i) Lack of Proper Formalities. Proper execution of a Florida Estate Planning Document requires that it be signed by the testator and witnessed by two witnesses, who also sign the document in the testator's presence. A Florida Estate Planning Document can be contested on the grounds that it was not properly drafted, signed, or witnessed in accordance with the applicable Florida requirements. If a Florida probate or circuit court determines that the Florida Estate Planning Document was not properly executed, the document becomes invalid and may not be admitted to probate in the state of Florida.
A substantive objection will include:
(i) Lack of Capacity. Under Florida law, a testator is required to have mental competency to make a Florida Estate Planning Document and to understand the nature of his or her assets and the individual(s) or charities to whom the assets are going to be distributed. A Florida Estate Planning Document can be declared void if lack of capacity can be proven. The standard for “testamentary capacity” is not as high as general competency. Typically, incapacity is established through a prior medical diagnosis of dementia, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the deceased around the time the document was executed.
(ii) Undue Influence. Undue influence occurs when the testator is compelled or coerced to execute a Florida Estate Planning Document as a result of improper pressure exerted on him or her, typically by a relative, friend, trusted advisor, or health care worker. In many cases, the undue influencer will upset a long established Florida estate plan where the bulk of the decedent's estate would have passed to the direct descendants, family members or a charity.
(iii) Fraud. A beneficiary can also claim the Florida Estate Planning Document was a product of fraud and the testator a victim of deceit. If a Florida probate court determines that a testator lacked the required intent or capacity, the Will (or portions of it) is invalid and the testator's estate subject to distribution through intestacy.
The time for instituting a Florida Will Contest is short, typically 90 days after the Notice of Administration has been provided by the Personal Representative, or 20 days in the event that Formal Notice of the Florida probate proceeding is received before the decedent's Will has been admitted to probate in Florida. Therefore, prompt action is required to bring your lost inheritance back to life.
Florida probate court proceedings in a FloridaWill Contest or Florida Trust Contest generally require expert medical and factual testimony by the lawyer who supervised execution of the document and by the relatives, neighbors and friends of the person making the Will or Trust. The answer depends on the reason for the Florida Will or Trust contest. If the Will or Trust is found to be invalid because it does not conform to Florida's requirements or the testator was not mentally competent when the estate planning document was executed, then the Florida estate property will pass under the Florida intestacy laws as if the Will or Trust never existed. In some instances only part of the Will or Trust may be found to be invalid. By example, if a beneficiary or caregiver is found to have coerced the testator into leaving them a part of their estate, then only the gift to that individual will be invalidated and the estate or trust property will pass into the residuary estate (if there is one) or under the Florida intestacy laws; the balance of the Will or Trust will remain valid. -------------------------------------------
What happens if a Florida Will Contest or Florida Trust Contest is successful?
OTHER TYPES OF FLORIDA WILL & TRUST LITIGATION
Document Construction. Some Florida Estate Planning Documents are vague, beneficiaries have died or disappeared, or the document does not properly dispose of the entire estate. In these instances, the assistance of the court is sought to determine how a decedent’s estate should be distributed.
Determination of Heirs. When a decedent passes away without a Will or Trust and maintained little to no contact with his or her family and heirs (as defined by the intestacy statutes) court intervention will be required to determine the heirs of the Florida estate. This may also include a decedent's formerly unacknowledged children who desire to prove paternity / maternity and make a claim against the estate.
Elective Share Litigation. The surviving spouse of a Florida decedent has the right to a share of the elective estate, absent a valid pre or post-marital agreement. The elective share will equal 30% of the decedent's elective estate.
Surcharge Action. The purpose of a surcharge action against a fiduciary (Personal Representative or Trustee) is to restore the losses sustained by the fiduciary’s breach of duty (wasted or mismanaged estate or trust assets).
Forged Documents. Estate planning documents that distribute assets to individuals outside of standard beneficiaries (spouse, children, grandchildren, nieces and nephews, etc.) through deeds, beneficiary designations, pay-on-death accounts, and joint accounts, that have been created improperly through manipulation or outright deceit. Litigation can be utilized to undo the beneficiary designations and changes instrumented by an individual attempting to steal from another individual (typically an elderly person) or from that individual’s intended beneficiaries.