Any person named in the will directly, or any person that is in the intestate beneficiary, which is often a family member of the person who died, has the ability to contest a will.
A person can object to a part or all of the will when they are a family member, normally a spouse or child. Grandchildren do it. There is a question about their capacity, there’s a question about undue influence of one or more other people. Again, the best way to avoid these problems is to anticipate them and to document your rationale for what you’ve done in your will or trust.
A will can only be contested once the person who has executed it has died, and then you have a three month window period to contest that will.
Probate litigation is any adversarial proceeding that goes along with the probate process. Typically it’s beneficiaries either fighting each other or fighting the estate due to some provision within the will.
In Florida the probate judges will make every effort to respect the choice of personal representative that’s nominated in the will itself. In order to remove a person who’s appointed as personal representative, you would not only have to show that there would be a conflict of interest, but also present evidence to demonstrate how that conflict of interest will interfere with the personal representative’s personal ability to administer the estate.
If someone objects to the will, the administration of the estate continues on as normal. It’s just that there can’t be any final distributions to beneficiaries until that contest is settled.
If the personal representative of an estate fails to perform his or her duties, such as by misallocating funds of an estate, oftentimes the beneficiaries will petition the courts directly to remove that person from serving as personal representative, and they can also personally sue the personal representative for any money that they are owed from the estate.
You’ll have a reasonable time to respond if anyone objects to the probate process. Then, if necessary, you may bring the objection before a judge to decide what the proper action is moving forward.
Will contest are dispute between a beneficiary or a person who wants to be a beneficiary or maybe even a spouse or a child who disagrees with the items that dispositions in the will and the best way to avoid them is to get good legal advice in the preparation of the will to explore the possibilities of will contest and then to document your rationale for your disposition.
The most common grounds for contesting a will is lack of testamentary capacity, and undue influence.
Three common scenarios that lead to a will or trust being contested are disinheriting children, illegitimate or non-marital children that are named in the document, or leaving a large percentage of your estate to a charity.
Yes, probate litigation can be very expensive. Often, those initial attorney fees will have to be paid out of pocket by whatever beneficiary is challenging and there’s no guarantee those expenses are ever going to be reimbursed from the estate.
If I believe the will of a family member is invalid, how long do I have to find a lawyer and raise my claim?
Generally you have three months from receiving notice of administration in order to contest the will.
I am concerned that the estate administrator is improperly distributing assets. How can I ensure that the estate is being administered correctly?
The best way to ensure that the estate is being administered correctly is to petition the probate court directly to remove whatever administrator is not doing his job correctly.
The best way to avoid probate litigation is to contact an estate planning attorney during your lifetime and do proper planning in order to assess whatever risk there might be for probate litigation after your death.
Yes, it also depends on how the assets are titled. Any assets that are titled in a decedent’s name solely with no designated pay on death beneficiary, will be required to go through the probate process.