Phone: 727-397-5571

Frequently Asked Questions About Probate & Estate Litigation

It is natural to have many questions and worries when faced with a legal issue or litigation. The experienced lawyers at DeLoach, Hofstra & Cavonis, P.A., ask many common legal questions and provide useful answers to help get you in making the best decisions for you and your family.

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  • Can I challenge a trust if I was cut out of the family business?

    Lawyer Explaining a Business Trust to a ClientFamily businesses are often passed from one generation to the next. However, promising a profitable enterprise to loved ones is not without risk—a risk that owners often try to mitigate by transferring their business interest to a trust. While a trust-based succession could spare heirs the rigors of Florida probate, beneficiaries may find themselves at the mercy of an untrustworthy, incompetent, or otherwise negligent trustee.

    Trust-Based Business Successions

    An unfortunate percentage of family-owned businesses perish within a generation.

    Since succession can complicate an enterprise’s day-to-day operations, forward-thinking entrepreneurs may create comprehensive estate plans to accommodate their financial interests. Trusts—legal vessels that can own, maintain, and redistribute a variety of tangible and intangible assets—are often used to facilitate the intergenerational transfer of wealth.

    Business owners would generally be advised to establish a revocable living trust. Small business owners may elect to fund a revocable living trust, which allows its founder—the settlor—to retain control over the trust’s assets while they are still alive. Once the settlor passes away, their designated successor trustee will manage the trust on their behalf, delegate roles, and distribute inheritances.

    Challenging the Conditions of a Trust

    Anyone seeking to challenge the terms of a trust must be able to establish that they have the standing to file a trust contest. In legal parlance, “standing” refers to a petitioner’s capacity to file a lawsuit or other claim. Under Florida law, qualified trust beneficiaries typically have the requisite standing to contest a trust.

    However, a beneficiary cannot challenge a trust simply because they believe they were unfairly deprived of an inheritance. A trust could be contested if an heir believes that:

    • The trust is invalid. Florida laws require that trust documents be signed by the trustor and at least two impartial witnesses. If a trust was not properly executed, then its existence could be challenged. However, beneficiaries should exercise some caution when contesting the validity of a trust. If the court finds that the trust is not valid, then its assets could be redistributed in a manner that does not favor the heirs.
    • The trustor was subject to undue influence. If the trustor was coerced or fraudulently induced to make certain estate planning decisions, then the trust—or elements thereof—could be found invalid by a Florida court.
    • The trustor lacked the legal capacity to make estate planning decisions. Florida law requires that the trustor have the mental capacity to understand not only that they are forming a trust but how the formation of the trust will affect their assets and heirs.

    Since trust contests are a form of probate litigation—or lawsuit—they should be considered with care and initiated only after consulting an experienced Florida probate litigation attorney.

    Challenging the Decisions of a Trustee

    The successor trustee appointed to manage the trust after the grantor’s death is considered a fiduciary. In other words, they have a moral and legal obligation to act in the trust’s best interest. If a trustee is negligent, self-serving, or otherwise incompetent, they could breach their “fiduciary duty” and be subject to removal. 

    A trust contest could remove a trustee if the trustee has breached their fiduciary duty by:

    • Failing to properly manage the trust’s assets
    • Failing to protect the trust’s interests
    • Misusing the trust’s assets to better themselves or their loved ones

    Trustees have other obligations that go beyond the administration of the trust—they must keep a detailed accounting of the trust’s expenses and actions and provide records to beneficiaries upon request.

    When trustees fail to fulfill their duties, whether by creating a conflict of interest or depriving an heir of a deserved inheritance, they could be removed from their position by the court.

    Contact an Experienced Probate Litigation Attorney Today

    If you believe that the execution of an invalid trust or a trustee’s misconduct has deprived you of your right to inherit a Florida business, please send DeLoach Hofstra & Cavonis, PA, a message online or call us at 727-397-5571 to speak to an attorney and schedule your initial consultation as soon as possible.

     

  • What are my rights as a beneficiary of a Florida trust?

    There are several reasons why beneficiaries, heirs, and family members disagree with how a trust is administered. One of the most critical rights beneficiaries have is the ability to challenge the trustee’s actions in court proceedings or through estate litigation.

    Beneficiary Rights Under the Florida Trust Code

    In legal matters, there’s a difference between an heir and a beneficiary. An heir is a relative or next of kin who stands to inherit after a family member passes away without a will. A Beneficiary Signing Trust Paperworkbeneficiary is a named party in a legal document (such as a will or trust) who has a right to receive a deceased person’s property. There are several tiers of beneficiaries to a trust, the most senior being a qualified beneficiary.

    Under the Florida Trust Code, beneficiaries of a trust have the right to expect certain actions and behaviors of the trustee, including:

    • Proper administration of the trust according to the document instructions and Florida law. The trust document should clearly state the testator’s intentions and which state’s laws apply to the provisions. If there’s no mention of the governing location, courts may determine jurisdiction based on where the trust was created or where the testator lived at the time of its creation.
    • Acting solely for the interests of the beneficiaries. The trustee must place the interests of the trust beneficiaries above all others, including their own.
    • Performing all duties in good faith. Everything a trustee does in administering a trust should be done to the best of their ability and without self-dealing and conflicts of interest.
    • Impartiality. Florida law requires trustees to treat all beneficiaries the same, showing no preference or applying different standards among beneficiaries.
    • Protection and defense of the trust. Trustees should take steps to defend claims made against trust property or enforce claims of the trust, such as using trust funds to secure an asset for the trust or filing lawsuits against someone to defend the trust in court. It also includes dealing with former trustees and collecting trust property and records from prior trustees.
    • Prudent use and investment of trust assets. There are strict rules for the holding, investing, and spending of trust assets. Trust property such as cash, stocks, bonds, and real estate, should be held and titled in the name of the trust. There must be no commingling of the trust property with the trustee’s own. Any expenses incurred by the trustee should be limited, reasonable, and documented. You also have a right to object to any professionals paid using trust money, such as brokers, accountants, realtors, or other third parties employed by the trust.
    • Timely communication and distribution. Trustees should not hold distributions or inheritances for any longer or any reason than legally necessary. All trust distributions should be made as soon as outstanding issues are resolved. If a beneficiary makes a request regarding the trust, the trustee should respond with a decision and a clear reason for the decision in a reasonable period.
    • Providing relevant information about the trust. Florida law requires trustees to keep qualified beneficiaries reasonably informed of the trust and its administration. This includes providing a complete copy of the trust document (including amendments) and an annual accounting showing all trust gains, losses, and distributions. 

    If You Suspect Mishandling of a Trust, We Can Help

    A trustee is considered a trusted agent, or fiduciary, to the heirs. This title carries legal responsibilities and consequences, including being held personally liable for breach of duty. If your trustee has engaged in self-dealing or has conflicts of interest, these transactions could be voided, and your trustee may be removed.

    At DeLoach, Hofstra & Cavonis, P.A., we have helped clients across Florida with various estate litigation matters. To learn more about your case, please call us at (727) 397-5571 or use our quick contact form so we can discuss all of your options under the law.

     

  • There was ambiguous wording in my relative’s will. How will the court decide what it means?

    Last Will and Testament Paperwork With a Gavel and PenLanguage that may be interpreted in different ways by different people can cause confusion, but in a last will and testament, it can also lead to costly estate litigation. When a certain word, phrase, or provision of a will could be taken in two or more different ways, there’s a strict process for determining the creator’s intent.

    How Courts Decide the Meaning of Ambiguities in a Will

    Unlike contesting a will in Florida, there’s no need to declare the entire will invalid if there’s an ambiguity in the document. Instead, the probate court will make a ruling on the intended meaning based on the deceased’s other provisions and overall disposition.

    The court will have to determine:

    • Whether an ambiguity exists. A will is not necessarily ambiguous just because two opposing parties interpret the will differently. The court will have to examine the document to determine whether the language in the will could be interpreted multiple ways. If the court finds that the creator’s intent can be determined as a matter of law, it will rule that no ambiguity exists and no additional evidence will be admitted.
    • What type of ambiguity exists. There are two kinds of ambiguities in these proceedings: patent and latent. A patent ambiguity is apparent on its face, or an easily identifiable error—for example, a will that leaves assets to the “grandchild” when there are multiple grandchildren. A latent ambiguity happens when the words of the will could be applied in multiple ways. For example, a will that leaves “all of mother’s possessions” to one heir, but leaves “mother’s engagement ring” to another heir. 
    • How to reconcile inconsistent provisions. Even if an error exists in a single clause, the court will assess the document as a whole to determine the creator’s true intent. If the court cannot make a determination, it may allow both parties to submit outside evidence (such as the deceased’s personal letters or diary) to resolve the matter.

    If you believe there is a mistake in your relative’s will, the Florida estate litigation attorneys at DeLoach, Hofstra & Cavonis are standing by to explain your legal options. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.

     

  • How can I prove undue influence in a will contest case?

    Woman Having an Intense Discussion With an Elderly WomanIll or elderly people are at high risk of being taken advantage of by scammers, petty thieves, or even those closest to them. Sometimes, an individual may manipulate a senior into changing their will, rerouting assets to the individual instead of the senior's proper heirs. When this happens, relatives may contest the will in probate court after a senior's death in order to have the will ruled invalid.

    What Is Undue Influence?

    Physical or mental incapacity can make a loved one extremely susceptible to elder exploitation. If someone unethically pressures a senior into changing their will for personal gain, the will can be contested based on undue influence.

    In general, a successful undue influence case proves that:

    • The will left property in an unexpected way. This usually means that close family members have been cut out of the will to the benefit of another party. As you may imagine, it can be difficult to prove what your loved one’s wishes are after their death. Correspondence from your loved one referring to certain items (such as “when you have my engagement ring,” or “I want that house to stay in the family”) or similar testimony can help prove true intent.
    • The influencer had a confidential relationship with your loved one. Anyone who has close contact with a senior could build a bond of trust to exert influence, such as a former spouse, distant relative, or a caretaker. Testimony from doctors, lawyers, relatives, and others can be helpful in demonstrating the nature of the relationship between the influencer and the deceased.
    • Your loved one was in a vulnerable position. In many cases, a loved one may be suffering from dementia or other condition that impairs their mental capacity. An influencer may further alienate a victim by preventing other family members from visiting or lying to nursing home staff.
    • The influencer improperly benefited from the will. Not all influences qualify as improper influences. An attorney may suggest certain changes to a will for the benefit of the heirs, and a spouse might push a dying loved one to alter an out-of-date will. The court will have to decide whether the influence caused an unfair distribution of assets.

    If you suspect your departed relative was pressured to change their will, Florida estate litigation attorneys at DeLoach, Hofstra & Cavonis can explain your legal options. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.

     

  • What is will reformation?

    Florida law sets strict rules about who may contest a Last Will and Testament, as well as the reasons a Will can be legally challenged in court. However, not all errors in a Will call for the revocation of the entire document. The Florida probate court may reform a portion of the Will to correct mistakes—even mistakes are not blatantly obvious.

    When Can Florida Residents Reform a Will?

    Last Will and Testament Paperwork in a FolderAs of 2011, Florida law allows for modification of a Last Will and Testament to correct a mistake of fact or law in the written Will. If you suspect that there is an error in the probated Will, you will have to provide sufficient proof that the mistaken provision doesn't reflect the testator's intent.

    Will reformations typically involve:

    • Interested persons. Any "interested person" under the Florida probate code may petition the court to reform or modify a Last Will and Testament. These persons usually include spouses, beneficiaries, heirs, and creditors.
    • Discovery. The court requires clear and convincing evidence that a written portion of the Will conflicts with the testator's original intent. Interestingly, the court may consider evidence in its decision that contradicts the apparent plain meaning of the Will. For example, imagine a grandmother's Will is deposited with the probate court and provides $1000 to each of her three children. However, a written draft of the will leaves each of her children $100,000. It may take physical evidence or witness testimony to determine which Will contains the mistake of law or fact. 
    • Tax concerns. The updated statute allows heirs to modify the terms of a Last Will and Testament to achieve tax objectives after a loved one's death. The court will only allow these modifications if evidence shows that modification does not contradict other terms of the Will.

    If you have questions about the terms of your loved one's Will, the Florida estate litigation attorneys at DeLoach, Hofstra & Cavonis can explain your legal options. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.

     

  • What is fraud and duress, and how can I prove it in court?

    There are only a handful of reasons a person may contest a relative's will under Florida law. One of them is inappropriate or illegal third-party involvement that causes a person (testator) to change the terms of their will in the third-party's favor. Depending on the circumstances, these actions are known as undue influence, fraud, or duress.

    Requirements for Fraud and Duress in a Florida Will Contest

    Will Contest on a Computer Screen With a Gavel and Scales of JusticeAlthough fraud, duress, and undue influence are often used interchangeably, there are subtle differences. Undue influence involves isolating the testator (either physically or emotionally) and using fear and intimidation to get them to change their will. On the other hand, a testator may be manipulated by:

    • Fraud. Fraud involves intentional attempt(s) to deceive or mislead the testator, making them believe false statements that spur them to change their will. In this way, the testator is making the changes of their own free will, but doing so under false impression or incorrect information.
    • Duress. Duress is the use of coercion or force to make a testator alter their will. In these cases, the third party often has physical control (or access) to the testator, and threatens physical harm to the testator or someone the testator loves. Under duress, the testator is aware of their actions, but is not making them of their own free will.
    • Active procurement. Third parties may involve themselves in the testator's estate planning process to make sure certain changes are made. A third-party's attempts to facilitate the making or rewriting of a will is called active procurement, and could be evidence of undue influence. Common forms of active procurement include a third-party's presence when the testator expressed the desire to make a will, securing of the attorney who drafted the will, obtaining the witnesses to the will, giving instructions on the will's contents to the drafting attorney, knowledge of the contents of the will prior to signing, presence at the execution of the will, and keeping the will in their possession after its execution.

    While a will that was made with a lack of testamentary capacity can be declared completely void, a will written with undue influence, fraud, or duress may only have certain portions declared void. For this reason, it's vital to speak with estate litigation attorneys who can piece together the evidence and fight for your inheritance in court.

    Contact the attorneys at DeLoach, Hofstra & Cavonis today by filling out our quick contact form to get your questions answered.

     

  • Are there alternatives to contesting a Florida trust in court?

    Trusts are a common way for people to pass on their property while saving their heirs time, money, and the need to go through probate. However, this doesn't mean that trusts are guaranteed to avoid the courtroom. The good news is that if an interested party has grounds for contesting the trust, there may be a way to resolve the problem without the need to file a lawsuit.

    Alternatives to Filing a Lawsuit to Contest a Trust

    Female Lawyer Discussing Paperwork With a ClientOne of the easiest ways to clear up confusion surrounding a trust is to request a thorough accounting from the trustee. Beneficiaries have the right to see the financial actions taken by a trustee on behalf of the trust and heirs. If the trustee refuses to provide an accounting, the court may compel the trustee to do so.

    If the accounting provided doesn't account for all trust assets or contains objectionable transactions, beneficiaries can ask the court for a more detailed accounting. If the beneficiaries are not satisfied, they may enter trust litigation to remove the trustee.

    If parties to the trust wish to question the terms or a trust, the actions of a trustee, or the validity of the trust itself, the matter can be resolved without litigation through:

    • Settlement Agreement. Nearly any trust matter can be resolved through a binding, non-judicial settlement agreement. All parties work to find an equitable remedy for the problem, giving them more control over the result while preventing the loss of trust assets in litigation.
    • Trust Modification. A trust dispute may only need clarification or modification of one or more terms of the trust. Trust modification is allowed only if the effects of the change are consistent with the settlor's purpose for the trust.
    • Termination of Uneconomic Trusts. A trustee has the authority to terminate a trust with a total value under $50,000 that contains insufficient assets to justify the cost of administration. If the trustee doesn't terminate an uneconomic trust, the court has the power to modify or terminate the trust, as well as the power to remove and appoint trustees. Once the trust is terminated, the trustee must distribute the trust property in a manner consistent with the settlor's purpose for the trust.
    • Trust Reformation. Any interested party may petition the court to reform the trust if certain terms don't conform to the settlor's overall intentions. This is typically done in cases of typos, unclear designations, or other errors that make the instructions significantly different from the settlor's intent. The interested party will need to provide clear and convincing evidence the terms of the trust were created by a mistake.
    • Trustee Removal. Co-trustees or beneficiaries may request court removal of a trustee, or the court may remove a trustee on its own initiative. A trustee may be removed for several reasons, including breach of trust, breach of fiduciary duty, or failure to effectively administer the trust. As long as the removal is in the best interests of all beneficiaries, is consistent with the purpose of the trust, and is followed by the appointment of a suitable successor trustee, interested parties don't need extensive proof of malfeasance to remove a trustee.
    • Trustee Resignation. A trustee may resign their duties with court approval or resign without court approval long as the settlor (if living), co-trustees (if any), and beneficiaries have been given 30 days notice of the intent to resign.

    Let Us Advise You on Your Next Steps

    In order for any of these actions to avoid ending up in litigation, it will take an experienced probate and estate lawyer to advise you every step of the way. If you are the trustee or a beneficiary of a trust, we can answer your questions and work to resolve your dispute as efficiently as possible. Contact DeLoach, Hofstra & Cavonis, P.A. to set up a consultation through our quick contact form, or start reading our free guide, The Top 20 Rules for Protecting Your Florida Estate.

     

  • What should I do if someone interferes with my inheritance?

    If you were unsuccessful in challenging a loved one's will in court, there are other legal options available to you. One of these is to file a tort action, or lawsuit for a wrongful act that caused you economic harm, under the theory of tortious interference with an expectancy.

    What Is Tortious Interference With an Expectancy?

    Tortious interference was first recognized in a 1966 court case in Florida, and focuses on protecting the rights of the person who created the will rather than Lawyer Talking to a Client About Tortious Interferencethe rights of the person bringing the case. If someone used fraud, duress, undue influence, or other independent tortious conduct to deprive your loved one of the right to dispose of property freely, a beneficiary (you) has the right to seek compensation on your loved one's behalf.

    There are a number of requirements needed to establish a claim for tortious interference. For example, you must be able to prove:

    • Your loved one had a specific intention to leave a portion of their estate to you
    • A third party (the defendant) did or said something to your loved one to reduce or eliminate your share of the estate
    • There was a strong probability that your loved one would have carried out their intentions if the wrongful acts of the defendant had not occurred
    • The defendant's interference was intentional
    • The defendant benefitted by receiving estate assets contrary to the testator's intent, by redirecting your inheritance to benefit someone else, or by depriving you of your portion of the estate
    • The defendant's wrongful interference was the reason your inheritance was reduced
    • The defendant's wrongful interference caused you to suffer actual monetary damages

    Unlike other forms of estate litigation, these actions seek compensation from the defendant personally rather than through funds in the estate. A successful judgment of tortious interference is paid from the defendant's personal assets and could include both compensatory and punitive damages.

    Could I File a Tortious Interference Lawsuit?

    This type of lawsuit is only available if you were not able to get an adequate remedy for the wrongdoing in probate court. Generally, this means you must have attempted a will contest or other action during probate to get your inheritance reinstated. However, the law doesn't require your attempt to contest the will to be successful, only that you exhausted your options in probate before making a tortious interference claim.

    You may also be barred from bringing this lawsuit if:

    • Your loved one is still alive. Since tortious interference involves pressing the rights of another person, you can only do so if the other person is unable to assert those rights. Florida Courts will not recognize a tortious interference case before the death of the person who created the will.
    • You had a fair opportunity to contest the will. It's understandable for the court to bar a claim because you chose not to seek relief in probate. However, if you did not have a fair chance to file a will contest (you were not properly notified of the death, etc), you may still be able to file a lawsuit.
    • You turned down a remedy during probate. The court may decide not to hear your case if there was an adequate and alternative solution offered during probate, but you chose not to take it.

    Let Us Help You Through Your Next Steps

    It takes an experienced probate and estate lawyer to succeed in a tortious interference with an expectancy claim. At DeLoach, Hofstra & Cavonis, P.A., we carefully examine the circumstances of your loved one's last will and testament, including whether they had the valid testamentary capacity or were unduly influenced by a third party.

    Whether you're considering contesting a will or are looking for ways to prove someone placed pressure on your loved one, we can help present your case and makes sure your loved one's true intentions are honored. Set up your consultation today through our quick contact form, or start reading our free guide, The Top 20 Rules for Protecting Your Florida Estate.

     

  • How long do I have to challenge a will in Florida?

    Sand Timer and CalendarFamily members may live their entire lives planning for—even depending on—an inheritance from a relative. However, many discover after the relative's passing that the terms of their loved one's last will and testament are not what they expected. If you believe your inheritance rights have been violated, you need to act quickly in order to bring your claim to court.

    Time Limits on Challenging a Will in Florida

    Although everyone has the right to distribute their property to heirs as they see fit, you may challenge a will if you have reason to believe that it was not made in accordance with the law. Just as there are a limited number of legal reasons to contest a will in Florida, there are also strict deadlines for filing a will contest.

    In order to challenge the will, you must:

    • Meet the filing deadline. Florida law mandates a strict filing deadline for will contests. Any interested person must file a formal lawsuit contesting the will within 90 days after the filing of the Notice of Administration—the document filed by the estate's personal representative notifying the decedent's heirs of probate court proceedings. If you received a Petition for Administration by formal notice, you only have 20 days to contest the will.
    • Have legal standing to bring a claim. Only certain people are allowed to contest a person's will in Florida. Our attorneys can tell you if you meet the requirements for legal grounds and standing.
    • Have proper evidence to prove your claim. In order to prevail in your case, you will need to collect supporting documentation, testimony, and other evidence to convince the probate court of your right to inherit.

    The estate litigation attorneys at DeLoach, Hofstra & Cavonis are standing by to discuss your legal concerns and help you fight for what you deserve. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.

     

  • What if my loved one wrote more than one will?

    If you are the personal representative to an estate, it falls to you to file the deceased person’s Last Will and Testament with the Florida probate court. But what if you locate two different Wills—or three, or more? Or a family member comes forward with a drastically different version of the Will?

    Which Will Is Valid?

    Last Will and Testament With a PenIt’s not uncommon for a person to create multiple Wills over their lifetime. However, only one Will can be valid at the time of a person’s death. The existence of multiple Wills is not only confusing, it's more likely to lead to estate litigation from disinherited beneficiaries.

    When deciding which version of a Will is valid, the court will consider:

    • The most recent document. In general, the most recently created Will is considered to reflect the deceased’s thoughts and wishes at the time of their death. But in order for the newest Will to be valid, the deceased must have legally revoked any previous Wills.
    • Whether previous Wills were revoked. Under Florida law, a person can revoke a Will in two ways: by writing, or by a physical act. For example, the most recent Will may explicitly state that any prior Wills are invalid. Or, the person can physically destroy the previous Will to revoke it.
    • Codicils. It’s possible to make changes to an existing Will rather than create multiple Wills that could cause conflict later. In order for any modifications to be legal, the deceased would have had to create a codicil, which is a separate legal document that must be written, witnessed, and signed according to Florida law. Codicils typically change only one or two things in the document (such as replacing a deceased beneficiary), and shouldn’t be used to rewrite the entire Will.
    • Evidence of destroyed or missing documents. Florida law allows the admission of a lost or destroyed Will for probate, as long as an interested person can establish the full and precise terms of the Will. However, two disinterested witnesses must be able to testify to the specific content of a lost Will. If an heir can provide a copy of the lost Will to the court, it may be supported by one disinterested witness.

    If you aren’t sure which version of a Will is legally valid, the dedicated attorneys at DeLoach, Hofstra & Cavonis, P.A. can answer your questions. Simply fill out the quick contact form on this page to set up a consultation and have us explain your options to you.

     

  • What does the Florida probate court do?

    Probate Stamp on PaperworkProbate is the process of gathering the assets of a deceased person (decedent) and ensuring that their property is legally passed on to others. The personal representative to the estate is responsible for communicating with the probate court, and the court approves each step until the decedent's assets are transferred and the estate is closed.

    The Role of the Florida Probate Court

    In most types of probates, the court serves as a supervisor over the process to make sure everything is done in accordance with the law. The court has many duties throughout probate, including:

    • Ensures that the Will is valid. Once the Will is filed with the court, it will be examined and recorded (along with the statements of witnesses) to make sure its provisions are valid.
    • Clears creditor claims. The personal representative is required to notify any creditors of the decedent's passing to give them a chance to collect their debts. Court supervision is necessary to determine which claims are valid and how they will be settled.
    • Checks the personal representative's accounting. The court examines all documents deposited by the representative for accuracy, including receipts for expenses taken from the estate during probate and an accounting of the decedent's assets.
    • Approves the inventory of assets. Once the court has ensured that the personal representative has correctly gathered and valued all of the deceased person's property, the assets can be distributed to beneficiaries.
    • Oversees the distribution of assets. The court makes sure that each asset is distributed to the person or entity that's supposed to receive it according to the law and the intention of the deceased.  All beneficiaries must be made aware of this process in certain ways, but the court will make sure the beneficiaries either must consent to the plan of distribution or that the beneficiaries were made aware of the plan of distribution and did not consent.
    • Hears cases involving estate litigation. If a relative challenges the terms of the Will or has a problem with the personal representative's management of the estate, the case will be brought before the probate court.

    If you have questions about probate or the terms of a loved one's Will, the dedicated legal team at DeLoach, Hofstra & Cavonis can explain your legal options. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.

     

  • Can I contest a will based on a relative's insane delusion?

    Will Contest on a Computer Screen With Gavel and Scales of JusticeInsane delusion is one of the lesser-used reasons to contest a will in Florida. Much like a lack of testamentary capacity, a will can be declared void if the court finds that the testator suffered from insane delusion at the time of the will's execution.

    What Is Insane Delusion and When Does it Apply?

    The Florida Supreme Court has defined insane delusion as "a fixed false belief without hypothesis, having no foundation in reality." In 2004, a Florida court expanded the definition, proclaiming an insane delusion to be "spontaneous conception and acceptance as a fact of that which has no real existence, and is persistently adhered to in spite of evidence and reason."

    Simply put, a will that was created or amended based on a testator's delusion should not be legally enforceable. Delusions may arise for many reasons, including:

    • Dementia. Evidence of mental illness or having suffered from delusions in the past may not be enough to invalidate the will, unless there is evidence that the testator was suffering from an insane delusion at the time of signing.
    • Effects of medication. The effects of certain medications can cause patients to hear voices or become susceptible to suggestion. In this condition, they may agree to the terms of a will without the ability to understand its purpose or the effects it will have on their heirs.
    • Effects of medical conditions. Organ failure, brain injuries, and other end-of-life conditions may cause patients to hallucinate or believe things that are demonstrably untrue (or impossible).

    While any one of the above could have caused the testator to suffer an insane delusion, that alone is not enough to contest the will. You must be able to show that the insane delusion caused the testator to dispose of their property in a way that they otherwise would not have.

    If you are defending a will or attempting to have a will voided in a Florida estate based on insane delusion, the estate litigation attorneys at DeLoach, Hofstra & Cavonis can examine the specifics of your case and explain your legal options. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.

     

  • What does trust reformation mean?

    Reviewing a Trust ReformationSometimes, a person's trust document may have provisions that are not in line with the creator's true intent. Trust reformation is the process of legally modifying a revocable or irrevocable trust to reflect the creator's wishes. If the settlor (the person who created the trust) is still living, they may be able to amend the trust without reformation. If the settlor is deceased, reformations may require agreements among beneficiaries or court proceedings.

    Provisions That Can Be Changed Through Trust Reformation in Florida

    Under the Florida Trust Code, a trust can be reformed to correct a mistake by the settlor even if the plain language of the trust is unambiguous. In simple terms, the document says something contradictory to what the settlor would have wanted. To reform a trust, you will need to provide clear and convincing evidence of the settlor's original intent.

    Reformation may be used to correct many types of errors in a trust document, including:

    • Mistakes of law. A trust may need to be modified to reflect any changes in state or federal inheritance and tax laws.
    • Mistakes of fact. Reformation may be needed if the trust document was not updated after the birth or death of family members, changes in the settlor's or family's financial condition, or revisions in the settlor's personal beliefs.
    • Drafting and printing errors. Florida does allow reformation to correct printing, signing, or drafting errors in an otherwise valid trust. However, it can't be used to correct an invalid trust document if the proposed changes would make the trust valid.

    Trust reformation has its limits. For instance, it can be difficult or impossible ot make any modifications that are contrary to the interest of the settlor. In addition, reformation may not make it easier to make additional changes to the trust terms in the future.

    The estate litigation attorneys at DeLoach, Hofstra & Cavonis can meet with you to discuss your legal concerns and help you fight for what you deserve. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.

     

  • When does a family member have grounds for contesting a will?

    When can a family member contest a will in FLIn Florida, there are only a handful of legal reasons for contesting a will. If the will was created voluntarily by a person of sound mind and in accordance with state law, you may not have any legal basis for challenging it.

    However, if you do have a valid claim, you should know that only certain parties can challenge the terms of a last will and testament in court.

    Who Can Contest a Will in Florida?

    In the Sunshine State, people who can challenge the terms of a will include:

    • Heirs-at-law. Heirs-at-law are close relatives that would have received a share of the estate if the decedent had died intestate (without a will). Under Florida intestacy laws, surviving spouses inherit first, then children, then grandchildren, then parents, then other descendants. As an example, let’s say Grandpa left a will that provides for his wife, children, and two grandchildren. The problem is, Grandpa had three grandchildren. This could mean that the will wasn’t updated to include Grandchild #3, or that Grandpa had his reasons for disinheriting her. If Grandchild #3 brings a claim, she has to prove that Grandpa didn't intentionally mean to cut her out of the will, or that will isn't valid for some other reason.
    • Beneficiaries. Anyone named in the current or previous versions of a will may have legal standing to make a claim. For example, an adult child may contest a parent’s will if they were named as executor in a prior will, but was replaced by someone else in the current version.
    • Guardians of interested minors. While minors typically cannot contest a will because they're not old enough to bring legal proceedings, a disinherited minor’s parent or legal guardian may be able to challenge the will on the child's behalf.

    As the person bringing forth the will contest, you have the burden of proof in the case. This can be difficult, especially if you don't have explicit medical proof of incompetence or other evidence of fraud. We can help you gather evidence to establish that the will isn't valid, allowing you to collect what's rightfully yours.

    The estate litigation attorneys at DeLoach, Hofstra & Cavonis can meet with you to discuss your legal concerns and help fight for what you deserve. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.

     

  • What is trust litigation?

    Trust litigation occurs when there are disputes about the distribution or handling of a deceased person’s assets. Just as probate litigation involves challenging the terms of a will, trust litigation involves challenging the terms of a trust. You may be named in an estate litigation lawsuit if you're one of the beneficiaries of the trust, or if you're a trustee accused of mismanagement.

    When Is Trust Litigation Necessary?

    Learning about trust litigation in FLIdeally, a trust should be formed with the help of an estate planning attorney to ensure that instructions are clear and there are no errors or oversights that could lead to lawsuits. However, legal problems can still arise if heirs disagree on the terms of a trust.

    You may need to hire us as your trust litigation attorneys if:

    • There are assets missing from the trust. Trustees have a duty to follow the directions laid out in the trust, and to act only in the best interests of the trust or its beneficiaries. If you suspect a trustee has been stealing or mismanaging trust assets, they can be compelled to provide accounting information to the beneficiaries or be considered in breach of the trust.
    • You were unexpectedly disinherited. Although some heirs are intentionally left out of a trust, there are cases where disinheritance should be challenged. For example, if the deceased promised that you would inherit and the trust was recently amended, we can help you investigate the matter and press your claim.
    • You suspect fraud or criminal activity. If someone coerced the creator of the trust to change the terms in their favor, you may have a case of financial elder abuse. If any documents were forged, the trustee could face both civil and criminal charges.

    The attorneys at DeLoach, Hofstra & Cavonis can meet with you to discuss your legal concerns and help fight for what you deserve. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.