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.
- Page 1
What does trust reformation mean?
Sometimes, 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?
In 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?
Ideally, 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.
Can I challenge a relative's will if I was disinherited?
A last will and testament is a legal contract, and disinherited family members cannot contest a will simply because they don't agree with its terms.
That said, there are valid legal reasons for challenging a will in most states. If the court decides one of these reasons exists, some or all of a last will and testament could be declared invalid.
Legal Reasons to Contest a Relative's Will in Florida
State laws vary on the reasons why a relative may contest a will in court, as well as what happens if the dispute is successful. Depending on what grounds the will is challenged, a Florida court may rule that one or more provisions are not legally-binding, or it can rule that the entire will is invalid.
Under Florida law, you can legally challenge a last will and testament if:
- The decedent lacked the mental capacity to sign the will. If the court finds that the decedent (the person who created the will) didn't have the mental capacity to make or sign the will, the entire document may be declared invalid. If this happens, everything in the decedent's estate will be distributed according to Florida's intestacy laws as if they had died without a will.
- The decedent was unduly influenced. A will may be void if someone else forced or influenced them to make a decision they wouldn't ordinarily have made.
- The will was procured by fraud. A will may be declared invalid if the decedent was deliberately misled by someone else, or if it was fraudulently created or obtained.
- The will wasn't created in accordance with state law. Each state sets forth procedures that must be followed in order to make a will legally binding. For example, every will in Florida must be signed in the presence of two witnesses, who must also sign the will. A court may invalidate documents that were not signed with the correct formality.
If you believe you may have grounds to challenge a loved one's will, the legal team at DeLoach, Hofstra & Cavonis can advise you on your potential options. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.