Probate And Trust Litigation FAQ
1. What is probate litigation?
In Florida, probate is a court proceeding that administers a deceased person’s estate. It may be done either testate — with a will — or intestate — without a will. The probate process is usually referred to as administration of the estate.
In addition to the administration of an estate, however, sometimes disputes arise in probate. The court process of fighting over these disputes is what lawyers sometimes call estate litigation or probate litigation. Effectively, this is analogous to a lawsuit within the probate proceeding. In fact, in most probate litigation cases, the challenging party will declare that the action is “adversary” and thereby trigger certain rules of procedure involving the dispute.
2. What is a will contest?
One of the most common disputes leading to probate litigation involves challenging a person’s will. Will challenges, or will contests as they are sometimes called, are most often based on undue influence, fraud or duress. For example, if three weeks before a person’s death, he or she makes a new will excluding his or her children and leaving everything to a caretaker, the children might challenge the will as a result of undue influence by the caretaker.
Will contests also sometimes involve challenges to a person’s competence at the time the will was executed. For example, in the above example, if the person naming the caretaker was suffering from dementia or some other debilitating illness when he or she executed a new will, that person might not have been competent and the will may thereby be subject to challenge. The litigation would bring the matter before the probate court to be decided.
3. Are there other types of probate litigation?
In addition to will contests, probate litigation sometimes involves other disputes over who is in charge of an estate or how an estate is being handled. Disputes commonly arise over who will be appointed as personal representative of an estate. Both Florida law and the terms of the will come into play in addressing this issue. Another common dispute arises when a personal representative — the person appointed by the court to administer the estate — fails to include all estate assets in the estate inventory. Beneficiaries may challenge the inventory as not being accurate, thereby resulting in the court ordering a more complete inventory. In other instances, a beneficiary may dispute how a personal representative is distributing estate assets.
4. Can there be litigation when there’s a trust?
When a person dies leaving a living or revocable trust, there usually will be no probate. However, that does not always mean there are no disputes. As with probate administration, sometimes a beneficiary may seek to challenge a trust based on alleged fraud, duress, mistake or undue influence. In addition, during trust administration, beneficiaries and the trustee may have differing points of view on how things should be handled. If that dispute remains unresolved, litigation can occur. Florida’s Trust Code imposes duties on trustees and if these are not followed, lawsuits can result.
Common areas of dispute in trust litigation involve:
- Challenging the trust based on fraud, duress, mistake or undue influence
- Breach of fiduciary duty by the trustee such as mishandling trust assets
- Failure to provide an accounting
5. Do I need an attorney for probate or trust litigation?
In any probate or trust litigation, the party mounting the challenge must be represented by experienced probate counsel — preferably one who has litigation (courtroom) experience. At Lins Law Group, P.A., our lawyers have handled numerous probate and trust litigation matters.