You may have heard the term "probate" used to describe the process of inventorying and distributing a loved one's assets after death. While the probate court oversees these proceedings, they are also the body that will hear and make a ruling on any contested matters brought by you, an heir, or other interested parties. This is known as probate litigation, and it can cause stress and emotional upheaval for many family members.
Different Kinds of Probate Litigation Cases
Any legal contest filed with the probate court that arises after a person's death or as a result of mental incapacity will likely be categorized as probate litigation. For example, you may need a probate litigation attorney if you:
- Want to challenge the validity of a will or trust. There are only a few reasons a will or trust can be declared invalid by the court. The first is that the will or trust creator lacked testamentary capacity at the time the will or trust was created; the second is that the will or trust maker made certain decisions due to pressure or influence by someone else; the third is that the will was not created in accordance with state law; fourth, the will itself is fraudulent.
- Want to modify the terms of a will or trust. Trust modification or reformation lawsuits may be necessary to make changes to certain provisions that affect heirs. For example, the court may be allowed to intervene if the document contains a typo or printing error or includes or legal changes could harm the beneficiaries.
- Want to defend the estate against claims from heirs. Many probate litigation cases arise because the deceased's estate plan contained unexpected gifts or disinheritances. A will may leave balances of bank accounts to former spouses, provide unequal shares to children and step-children, or omit certain family members altogether.
- Suspect criminal activity. If the will or trust maker was deliberately lied to, misled, or otherwise a victim of fraud, certain conditions in a will or trust can be challenged. In addition, beneficiaries may bring claims against a fiduciary (such as trustee of a trust or the executor of an estate) who has failed to act in accordance with the law. Common reasons for legal action against fiduciaries include untrustworthiness, suspicion of embezzlement, acting under the influence of others, or otherwise breaching the duties and best interests of the estate. Litigation can force a fiduciary to produce financial records, disburse trust funds, or step down in order to allow someone else to act as fiduciary.
- Want to collect on a debt owed by the deceased. If the person who has passed away owed you a considerable amount of money, you may make a claim against the estate for repayment of the debt. However, the executor can reduce the amount of time you have to collect on this debt to just 90 days by publishing a Notice To Creditors.
- Are within the statute of limitations. Even if there is a valid challenge to the estate, a claim will need to be brought within the statute of limitations. In Florida, you only have 90 days after a Notice of Administration has been provided by the executor to make a claim. If you have received a Formal Notice of the probate proceeding before the will has been admitted to probate, you only have 20 days to contest an estate. The probate court will not hear a claim brought beyond the legal time limit. So it is vital that you seek legal counsel as soon as possible.
When there's an issue with a will or trust, fighting it in litigation is both frustrating and stressful. At DeLoach, Hofstra & Cavonis, we offer personal service and tenacious representation to help you through the process. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.