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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How do I know if I need an estate litigation lawyer?
While mediation and careful deliberation can bring a peaceful end to many disagreements, some claims demand a more intensive approach. When heirs and beneficiaries cannot resolve their differences, they may be forced to take their case to court.
The Role of a Florida Estate Litigation Lawyer in Probate Estate Contests
A estate litigation lawyer is an attorney who has experience creating estate plans and resolving conflicts between heirs, beneficiaries, and other interested parties. During a probate estate contest, an attorney can help parties understand their legal rights and work toward an out-of-court settlement.
Under most circumstances, a probate estate litigation attorney works with or for the estate’s personal representative. The personal representative, known as the "executor" in many states, is the individual responsible for initiating the probate estate, collecting the estate’s assets, and distributing inheritances.
An experienced Florida probate estate litigation attorney could help the personal representative:
- Verify or validate estate documents
- Interpret a will
- Resolve disputes between beneficiaries
- Adjudicate suspicious or unreasonable creditor claims
- Manage estate assets and investments
However, a Florida probate estate attorney could also advocate the interests of a beneficiary by:
- Arbitrating disagreements about the use of estate funds
- Filing a claim challenging the allotment of an inheritance
- Helping beneficiaries secure assets to which they are legally entitled
Since Florida’s probate process is a deadline-driven and time-sensitive process, heirs, beneficiaries and personal representatives may need the assistance of an experienced probate estate litigation lawyer to protect their best interests while ensuring continued compliance with state law.
When to Consider Contacting an Estate Litigation Lawyer
A Florida estate litigation lawyer could help heirs, beneficiaries, and personal representatives resolve contests including, but not limited to, the following:
Florida law presumes that most adults of sound mind have the legal capacity to execute a will and make other estate planning-related decisions. However, a will is only valid if it meets certain requirements. For example, a will must be:
- Made in writing
- Created by a person of sound mind, meaning they understand the purpose of a will, the nature of their relationship with heirs and beneficiaries, and their estate assets
- Signed by the testator in the presence of at least two witnesses
If a will is not properly executed, or contains ambiguous clauses, a beneficiary could claim that the will is invalid and cannot be admitted to probate.
Guardianship and Conservatorship Disputes
Guardianships can protect the financial and legal interests of a person who lacks the capacity to make decisions for and of their own accord. While these arrangements are broadly intended to ensure that a vulnerable minor or mentally incapacitated adult is afforded the resources necessary to sustain themselves, they are not always consensual or uncontested.
Trust Administration Claims
The establishment of a revocable living trust or irrevocable trust allows grantors to condition inheritances, which are often distributed without the need for formal probate. However, a trust only serves its intended purpose when it is fairly and competently administered.
If a trustee or beneficiary believes that a trust is being mismanaged, then they could initiate a claim against the trust or its trustees.
Trust Dissolution Claims
If a trust exhausts its resources or can no longer fulfill its intent, then then the trust’s continued possession of trust-controlled assets could prove detrimental to its beneficiaries.
Breach of Fiduciary Duty Lawsuits
Estate representatives and trustees have a fiduciary duty to act in the best interests of the estate or in the best interests of the trust, respectively.
When an personal representative or trustee makes unreasonable decisions—perhaps by wastefully investing assets or by trying to use an estate’s assets for their own, personal purposes—they could breach their fiduciary duty, prompting a challenge from beneficiaries who believe that they are not receiving the inheritance that they are entitled to.
Do I really need a lawyer to challenge a will, or can I do it myself?
Estate challenges are common; however, contesting a will is rarely straightforward. While you do not need an attorney to petition the court to strike, amend, or reconsider a will, a probate litigation lawyer could help you build the compelling case needed to overcome Florida’s high standard for challenging a will.
Filing a Will Contest Can Be Complicated
Florida Limits Who Can File a Will Challenge
Anyone can file a probate lawsuit in Florida, provided that they have standing to challenge the estate. Petitioners can prove standing by demonstrating that the estate’s improper administration could harm their interests. People who have an interest in an estate are called “interested parties,” and generally include the beneficiaries of the will in question, disinherited beneficiaries, and creditors.
Other interested parties could include the following:
- The beneficiaries of a previous will
- Persons who would have been beneficiaries under state intestacy law (heirs-at-law)
- Guardians of interested minors
State Law Requires Contests to Meet a High Standard
An interested party may only file a will contest if they have reason to believe that the will does not accurately reflect the intent of the testator. To succeed, you must prove one of the following:
- The will was not executed in compliance with state law
- The testator lacked the mental capacity to write, sign, or execute a will
- The will was the result of fraud, duress, or undue influence
- The testator or witness's signatures were forged
Florida law presumes that most adults have the legal capacity to make their own estate planning decisions. The individual submitting the will to the court does have the burden of establishing prima facie the will's formal execution and attestation. This, however, is often as simple as presenting the court with a will that, on its face, meets the minimum execution requirements.
Petitioners thereafter contesting the will bear the much more difficult burden of proving the will is invalid due to one of the aforementioned reasons. If you believe that a loved one’s will may be invalid, you will need to gather the evidence needed to persuade the court. This could include:
- Copies of a previous will
- Samples of the decedent’s signature
- Testimony from witnesses or a handwriting expert
- Documentation and testimony from medical experts and caregivers
Even if a petitioner can prove that they have grounds to challenge the will, proceedings can be long, drawn out, and contingent on narrow interpretations of very technical laws.
How a Florida Probate Litigation Attorney Can Help
A Florida probate litigation attorney can help you understand and prepare for the complex task of challenging a will. Depending on the circumstances of your claim, your lawyer could:
Investigate Your Claim
Probate claims can have unexpected outcomes, and many contests never go all the way to trial. During your initial consultation with a Florida will contest attorney, you will have the opportunity to discuss your case. After hearing your side of the story, your lawyer will weigh the evidence and help you evaluate your options.
If you have a viable case, your attorney will help you further investigate, collecting the evidence needed to prevail in negotiations or in court.
File the Right Paperwork at the Right Times
Contested probate proceedings often take time to resolve, and are a deadline-driven processes. Claimants must file their complaint within the state statute of limitations and the Florida probate rules, respond to court requests timely, and comply with the estate during discovery.
Since probate contests are a type of lawsuit, missing a deadline—even a minor deadline—could result in your case being dismissed.
Fight for Your Rights
Your attorney will aggressively advocate for your best interests, whether in negotiations with the estate or before a Florida probate judge. Your attorney will carefully navigate the many pitfalls that are inevitable in a contested probate proceeding, and present you with your options as the case evolves.
Often, the best resolutions occur before trial and could include an out-of-court settlement with the estate, or arbitration overseen by an impartial third party. However, if the estate is unwilling to negotiate in good faith, we will take the evidence collected and fight for your rights before the court.
Contact a Florida Probate Litigation Attorney Today
Contesting a will is a big decision, but you cannot afford to wait. If you take too long to contact an experienced Florida probate attorney, the statute of limitations on your claim could lapse.
Please send DeLoach, Hofstra & Cavonis, PA, a message online or call us at 727-397-5571 to schedule your initial consultation as soon as possible.
When can an irrevocable trust be terminated in Florida?
Terminating an Irrevocable Trust in Florida
Under Florida law, many irrevocable trusts can be terminated with or without court approval. An irrevocable trust can be terminated without court approval, known as a "non-judicial" termination, when the trustee and all qualified beneficiaries agree to terminate the trust. Note, however, that this only applies to most trusts created after January 1, 2001. For trusts created before that date, judicial intervention is usually required.
For trusts that require judicial involvement to terminate, the court, either of its' own volition, or by petition of a trustee of qualified beneficiary, may terminate the trust for a variety of reasons.
The Grounds to Terminate an Irrevocable Trust
When court approval is required, there are several grounds by which qualified beneficiaries may petition to terminate a trust, namely:
- The purposes of the trust have been fulfilled, or the trust's material purpose no longer exists.
- The trust is no longer in compliance with state law.
- The trust’s administration or conditions are impractical or impossible to carry out.
- Continued compliance with the terms of the trust would defy the settlor’s original intent.
Additionally, qualified trust beneficiaries can petition the court to terminate a trust if and when they have cause to believe that the trust is not being properly administered. A trust could be terminated if:
- The trust’s administration is not economical. Smaller trusts holding less than $50,000 in assets can be termed “uneconomical” if the value of the trust’s assets cannot justify the costs of administration. This may also apply to trusts holding more assets if the value of the trust property is generally insufficient to justify the cost of administration.
- The trust was not established in accordance with state law. If a trust was created under improper circumstances—such as undue influence, fraud, or duress—the trust could be terminated.
- The trust has been impacted by a merger. Under certain circumstances, a trust may be merged with another trust. When trust assets are transferred into another trust, the original entity may be dissolved if it no longer serves its intended purpose.
Finally, when legal and equitable interests of the trust merge, i.e. the only assets owned by the trust are also owned by the individual acting as the sole trustee and beneficiary, the trust can be terminated.
Alternatives to Terminating a Trust
Terminating a trust can be time-consuming. However, beneficiaries often have options beyond taking a trust to court.
If a trust’s beneficiaries have pressing questions about a trust’s administration or assets, they may pursue:
- A settlement agreement. Trust disputes can typically be resolved through binding, non-judicial settlement agreements. During a settlement negotiation, beneficiaries and trustees work to identify fair and equitable solutions. A settlement could afford heirs more control over their legacy while ensuring that the trust’s assets are not wasted in litigation.
- Trust modification. While trusts are usually established in good faith, a trust may not have clearly defined terms and conditions. If a qualified beneficiary believes that a trust is not fulfilling its intended purpose, they could request that the trust be modified to better reflect the settlor’s intent or better comply with changing circumstances.
- Trust reformation. Any interested party, including qualified beneficiaries, may request that the trust be reformed if its terms do not honor the deceased settlor’s intent. However, trust reformations are typically only approved under certain circumstances. For example, a trust may be reformed if the trust’s conditions contained typos, mistakes, or ambiguous language.
- A reappointment. Trustees can be removed for a variety of reasons. If a trustee has breached their fiduciary duty, failed to effectively administer the trust, or otherwise abrogated their responsibilities, the qualified beneficiaries could ask the court to appoint another trustee.
Trust disputes can often be settled out of court. However, interested parties seeking to modify a trust must typically have standing to request any significant changes to the trust and its provisions. Gathering the evidence needed to change a trust’s terms or administration can be time-consuming, especially if the amendment would impact other beneficiaries.
Contact a Florida Trust Attorney Today
An irrevocable trust is a powerful estate planning tool. Under competent administration, a trust could protect a family for generations. However, when trusts are not run in accordance with the settlor’s intent, heirs can be deprived of their inheritance and forced to turn to the court for relief.
You should never be forced to accept trust mismanagement. Please send DeLoach, Hofstra & Cavonis, P.A., a message online or call us at 727-397-5571 to speak to a probate litigation attorney and schedule your initial consultation.
Can pets really inherit through wills and trusts?
How Florida Estate Planning Provides for Pets
The Sunshine State did not always provide pet owners with the legal resources needed to accommodate a family pet within a conventional estate plan. This is because Florida, like most other states, considers pets the property of their owners. Since pets are categorized as a form of personal, individually-owned property, they do not enjoy the same inheritance rights as human beings. Nevertheless, pet owners have a wide variety of options to protect their pets—even after death. A pet owner could:
- Include their pet in a will. A pet cannot inherit estate assets. However, a testator could still include their pet in a will by bequeathing the pet to a named heir or beneficiary. Unfortunately, this strategy could fail if the heir is unable or unwilling to take on the responsibility of adding another four-legged member to their family. You can also name who you want to your pet to go to as part of a "separate writing" as well,
- Accommodate their pet in a trust. A will or a revocable living trust could include provisions or requests for the continued care of household pets. A simple example of pet planning is a bequst to a trusted person to use to help your pet.
- Example: I give the sum of $5,000 to my serving Trustee to use these funds to find a new home for any pets I own at the time of my death. My Trustee shall, in sole discretion, have the ability to pay all costs associated with my pet(s) from this bequest.
- Fund a dedicated pet trust. Upon your death, a pet trust can be established for the sole and specific purpose of maintaining a pet after the original owner’s death. The pet trust is discussed below.
Florida Pet Trusts
A pet trust is typically a fund of money set aside to help your pet upon your death.Pet trusts can send, receive, and manage assets, including the following:
- The pets are to be transferred to the trust’s care after the grantor’s death
- Pet care equipment and accessories, such as the pet’s favorite toys or any necessary medical supplies
- The money needed to cover the pet’s reasonably anticipated expenses
Florida law explicitly allows a pet trust to continue providing for a pet’s best interests until the pet passes away.
Pet Trusts Create a Legal Obligation to Maintain the Pet’s Best Interests
A pet trust allows the grantor to designate a successor trustee to care for their pet after they have passed away. In Florida, a successor trustee has a legal obligation to honor the terms of your trust and use trust funds exclusively for your pet’s maintenance.
When you establish your pet trust, you could enhance your successor trustee’s accountability by:
- Listing the pets included in the trust
- Naming a caretaker or caretakers
- Detailing the nature and quantity of assets left for the pets
- Describing how the pet should be cared for
- Appointing an attorney or other representative to enforce the terms of the trust
- Explaining how any residual or remaining funds should be used after the pet passes away
Once a pet trust has been established and the successor trustee appointed, the trustee has a legal duty—known as a fiduciary duty—to use trust funds responsibly and reasonably. If the successor trustee levies excessive personal charges, they could be held liable for misconduct in a Florida civil court.
Use our Firm for your Pet Trust
We have a long history of supporting animal charities and working with pet trusts. Attorney Rep DeLoach was on the board of SPCA Tampa Bay for over 6 years and has worked in depth on pet trust planning for over 20 years.
Contact a Florida Probate Attorney to Establish or Enforce a Sunshine State Pet Trust
Pet trusts can be difficult to establish and enforce without the right assistance. DeLoah, Hofstra & Cavonis, P.A., has years of experience helping Floridians build their legacies and protect their families' best interests. Please send us a message online or call us at 727-397-5571 to schedule your initial consultation.
How can I accurately estimate the value of my loved one’s belongings?
The Different Types of Property in Florida Probate
Personal representatives are typically responsible for the administration of the following types of property:
- Real property
- Tangible personal property (such as household items)
- Intangible personal property (such as bank accounts)
- Intellectual property
Certain types of property, such as real property and tangible personal property, may require appraisals. However, real properties are relatively simple to appraise, insofar as they are customarily appraised at their fair-market value at the time of the decedent’s death.
Tangible personal property, in contrast, may pose additional challenges for personal representatives, as its fair-market value or intrinsic properties may be difficult to gauge, especially when considering beneficiaries oft-divergent interests.
Tangible Personal Property in Probate
The Florida Probate Code offers no single definition of what could be considered tangible personal property. In estate law, tangible personal property, or TPP, refers to physical assets that exist in the real world and can be relocated.
The following types of assets could be considered tangible personal property:
- Motor vehicles, including cars, motorcycles, and motor homes
- Household appliances
- Jewelry and artwork
- Personal collections, such as coin collections, postage stamp collections, and model train collections
Under certain, limited circumstances, even a family pet could be considered tangible personal property during probate and estate administration.
How to Appraise Tangible Personal Property
Tangible personal property can usually be appraised using any one of the following three methods for assessing fair market value:
- The Market Approach. The market approach determines the value of assets based on comparable sale prices for the same type or class of assets. In general, the market approach uses readily-available data to assess how much an item of comparable age and condition would be worth on the open market.
- The Income Approach. If an asset generates a profit, then its fair market value could be assessed by calculating how much income the asset produces and could be reasonably expected to produce in the future.
- The Cost Approach. Some rare or irreplaceable items can be appraised using the cost method, which determines an asset’s fair market value based on how much it would cost to reproduce, replicate, or replace an item. The cost approach may be used to appraise assets that are no longer produced, manufactured, or in common use.
Most tangible personal property, such as motor vehicles, electronics, and furniture, can be appraised using the market approach. Oftentimes, executors only need to run a comprehensive set of internet searches to estimate an asset’s value.
However, comparably complex assets—such as a revenue-earning real property—may require a professional evaluation.
When You Might Require an Appraisal
Certain types of rare, collectible, or complex assets may not have any clear-cut or easily calculable market value.
In general, you may need an appraisal for the following categories of assets:
- Real properties
Any jewelry or artwork that has an appraised or probable value of $50,000 or more should be assessed by a qualified professional, as it may be subject to additional review by the Internal Revenue Service’s Art Advisory Panel.
Contact a Probate Attorney Today
Ensuring that estate assets are properly appraised and assigned a fair market value is critical to avoiding conflict between heirs, creditors, and other interested parties. DeLoach, Hofstra & Cavonis, P.A., has been helping Floridians navigate the complexities of probate since 1976. If you need assistance executing or administering a Sunshine State estate, please send us a message online or call us at 727-397-5571 to speak to a legal professional and schedule your initial consultation as soon as possible.
What happens if one or more beneficiaries of a will cannot be located?
Florida’s Formal Notice Requirements
Probate is the multi-step process of formally settling a deceased person’s estate. For most families, probate involves the following formalities:
- The deceased person’s personal representative files a petition to initiate probate in the county where the decedent resided.
- The personal representative sends formal notice of the probate proceedings to the deceased person’s surviving spouse, named beneficiaries or heirs, and others as enumerated by Florida Statute.
- After sending notice, the personal representative must gather and inventory the decedent’s assets.
- Once assets have been marshalled, the personal representative may pay the estate’s creditors and disburse inheritances.
However, the relative linearity of probate may be complicated by the absence of named beneficiaries or heirs. Florida law explicitly requires that beneficiaries or heirs be served formal notice of probate through any of the following means:
- Sending a copy of the petition to the beneficiary’s last known address using a delivery service that requires a signature upon receipt.
- Sending a copy of the petition to the beneficiary’s attorney.
- Send a copy to the beneficiary’s guardian or caretaker, if the beneficiary is underage or incapacitated.
- Send a copy as otherwise provided by the rules of Formal Notice.
If the beneficiary cannot be located, or does not respond to the notice of probate, the personal representative and their attorney may be required to proactively search for the beneficiary.
Addressing the Absence of a Beneficiary
If the personal representative cannot locate a beneficiary, they may be able to serve notice of probate by publishing a notice in a local newspaper or other media outlet. However, before the personal representative may publish a notice in a newspaper, they must receive the court’s permission. Under most circumstances, the court will only grant permission if it has been provided an “affidavit of diligent inquiry.” The purpose of this affidavit is to ensure that the personal representative made a good-faith effort to locate the beneficiary.
If the beneficiary fails to respond to the notice, then the personal representative may be able to take the following actions:
- Petition the court to recognize the beneficiary as legally deceased, if there is reasonable cause to believe that the beneficiary has passed away.
- Petition the court to appoint a Guardian Ad Litem who can "stand in the shoes" of the beneficiary.
- Petition the court for a preliminary distribution of the remaining assets to other beneficiaries.
- Place the beneficiary's assets in a trust for a pre-determined period of time.
If the beneficiary’s assets are placed in a trust, the estate’s other beneficiaries may petition the court to release and redistribute the assets after the pre-determined period of time has elapsed.
In a worst-case scenario—such as when the decedent died intestate and has no locatable beneficiaries or heirs—the remaining assets may “escheat” to Florida, becoming property of the state. Unclaimed assets will be transferred to the control of the Florida Chief Financial Officer and placed in the State School Fund.
Should the funds remain unclaimed for a period of 10 or more years, they will escheat to the state and be used for public educational purposes.
Contact an Attorney Today
When a Floridian passes away, their estate plan forms the basis of their legacy. If you have been appointed as an estate executor and cannot locate a missing heir, DeLoach Hofstra & Cavonis, P.A., could assist you in protecting a loved one’s last wishes. Please send us a message online or call us at 727-397-5571 to schedule your initial consultation as soon as possible.
Can I challenge a trust if I was cut out of the family business?
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.
Can I have my sibling removed as the personal representative of our parent’s estate?
When Siblings Can’t Agree on Estate Decisions
Acting as personal representative is a big responsibility, and there are a littany of reasons a sibling may be disqualified from serving in such a capacity. Unfortunately, even if qualified to act in such a capacity, when adult children are empowered to make decisions that could affect their own inheritances, they may be tempted to abuse their positions for self-gain.
Even if the personal representative does not violate their fiduciary duty to advocate the estate’s best interests, or is otherwise disqualified from acting in such a role, they might not be suited for the role for various reasons.
- A sibling might believe they understand their parents’ last wishes better than their brothers and sisters.
- The personal representative might not treat other beneficiaries with the respect they deserve.
- The personal representative might mismanage their parent’s assets, losing money on investments that should have been passed on to their beneficiaries.
- They might try to increase the size of their own inheritance by withholding critical information or misappropriating valuable assets.
If you, or a loved one, feel that your sibling is not responsibly managing a beloved parent’s estate, you could file a petition to have them removed from their position. However, before taking such a drastic step, you could explore alternatives for a more amicable resolution.
Challenging a Personal Representative’s Competency in Florida Probate
If you believe that your sibling has failed to competently manage your parent’s estate, you could challenge their authority by requesting:
- An explanation of inventory asset values. The personal representative is required to file an inventory detailing and valuing all assets in the probate estate. Upon written request, certain beneficiaries can obtain an explanation of how the assets were valued, and if a formal appraisal was obtained. This can be useful in determining whether assets are being intentionally under or overvalued in a manner that may be advantageous to the personal representative.
- Mediation. Mediation is an out-of-court alternative to probate litigation. In mediation, the beneficiaries will have the opportunity to speak with their sibling, discuss their feelings, and ask a trained professional—the mediator—to propose a fair solution to any outstanding disagreements.
- Removal. The court of its' own volition can remove a personal representative. Otherwise, only “interested persons” can petition the court to remove the personal representative. In Florida, “interested persons” can include the estate’s beneficiaries, heirs, and creditors, as well as other parties. However, since the Sunshine State’s probate courts strive to respect the decedent’s last wishes, they may be reluctant to remove the personal representative without compelling evidence of misconduct.
How to Petition the Court to Remove a Personal Representative
Once you have established that you have the proper standing to petition for the personal representative’s removal, you may:
- Collect evidence of the personal representative’s alleged misconduct. This could include both documentary evidence and eyewitness testimony.
- File a Petition for Removal in the court where probate proceedings are underway.
- Attend court-ordered hearings if necessary.
- Discuss options for a potential out-of-court settlement.
- Prepare for trial if mediation or another amicable resolution is not possible.
However, seeking the removal of a personal representative could pose a significant risk to the estate’s finances. Typically, the personal representative has the right to use the estate’s resources to defend themselves—and their decisions—in court. Even if you have a compelling claim, your sibling could still exhaust the estate’s assets in litigation.
Contact an Experienced Probate Litigation Attorney Today
Challenging a sibling’s position as a personal representative could prove difficult, especially if they are unwilling to accommodate their family’s feelings and alter their behavior. However, since probate litigation is a high-stakes undertaking, you need to be prepared for the possibility of your brother or sister putting up stiff resistance—potentially at the cost of your own inheritance.
Before filing a Petition for Removal, speak to an experienced probate litigation attorney to explore your options. Please send DeLoach, Hofstra & Cavonis P.A. a message online with our contact form or call 727-777-6842 today to schedule your consultation.
What are my rights as a beneficiary of a Florida trust?
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 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?
Language 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?
Ill 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?
As 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
Although 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
One 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.
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