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Probate litigation 101: What if I disagree?

| May 6, 2021 | Estate Planning |

Probate is the court process that oversees the distribution of an estate’s assets. A judge generally supervises the probate process. After paying off debts, the person administering the estate, often referred to as the executor, will distribute the remaining assets to heirs or beneficiaries. The executor uses a will for guidance, or if not present uses the instructions provided by state law, to guide this process. State law generally follows a specific order when distributing assets. This often begins with a spouse and, if not present, moves on to children, parents, siblings and on down the line until finding a relative.

It is important to note that the probate process only applies to probate assets. In Florida, probate assets are defined as those owned solely by the decedent at the time of their death. Examples can include certain accounts, real estate, or life insurance policies. Even probate assets may not require the probate process. These assets may transfer through other legal tools like beneficiary designations, the use of trust, or another type of prior agreement.

What if I disagree with the probate process?

Beneficiaries who disagree with the probate process could challenge the executor or judge’s determination. A common example involves an adult child that may have inherited, but another beneficiary found a will that does not list this child. The child may contest the validity of the will. The probate court judge would review the challenge and determine whether or not the will was valid. The judge may also consider whether the omission was intentional and if there was reason to disinherit the adult child.

Other common reasons for a challenge include concerns that the estate owner was pressured or manipulated into changing their will and whether or not the creator was competent or of a sound mind when creating the will at issue. The challenge may require a formal complaint or filing a petition with the court.

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