Probate Litigation

The death of a loved one can leave family members in emotional turmoil that has the potential to quickly evolve into bitter hostilities toward one another. When you add the division of family treasures and valuable assets it is easy to explain how probate litigation occurs.

Founded more than 30 years ago, Walser & Herman Law Firm exclusively handles estate planning and probate matters in jurisdictions throughout Florida. Our comprehensive estate planning services help families avoid disputes and ensure our clients’ wishes are honored during the probate process. If a dispute arises, our team takes action to protect our clients’ interests.

The probate court hears disputes regarding wills, trusts, guardianships and probate matters. In order to file a lawsuit, the plaintiff must have:

• Standing — Named beneficiaries and people who have the right to an inheritance under testamentary law, and have standing to file a claim. A personal representative may bring a claim on behalf of the heirs.
• Grounds — Grounds might include breach of the personal representative’s fiduciary duty, validity of the will or adherence to inheritance laws in Florida. In most cases, the arguments that a gift was not as valuable as promised or an heir was left out of the document, are not grounds for litigation.

Estate litigation occurs when a beneficiary or an expected beneficiary challenges an aspect of the will or trust. Factors that may give rise to a dispute include:

• Second marriages — Florida testamentary laws grant a spouse a statutory elective share of 30 percent. This right to property may come into conflict with the intentions of the decedent to leave a larger gift to children from a previous relationship.
• Large gift to a partner, friend or charity — Family members may contest the validity of large gifts to nonrelatives, especially if they believe they did not receive their fair share. Even though gifting is perfectly legal, the decedent should take steps to ensure a large gift will be given as intended.
• Disinherited children — In Florida, children do not have the right to an inheritance. However, the court may decide the disinheritance was accidental unless language clearly expresses the desire to leave a child out of the will or to grant a disproportionately small or large gift to one of the children.
• Breach of trustee’s fiduciary duty — A trustee is held to a high standard in his or her dealings with the estate and the beneficiaries’ interests. Whether the breach is accidental or purposeful, a beneficiary may seek removal or oversight through the probate courts.

The most thoroughly considered and well-intentioned estate plan may be challenged by an unhappy heir, but you can take steps to minimize the likelihood of a dispute and reduce the chances of a decision that runs counter to your wishes. Walser & Herman Law Firm may recommend the following estate planning strategies:

• Negotiate a prenuptial agreement before entering a second marriage to protect the inheritance of children from a previous relationship.
• Create a trust to protect assets of a minor child or a same-sex partner, friend or charity.
• Chose a trustee with legal and financial knowledge to avoid unintentional mistakes made by the trustee to the detriment of beneficiaries.

Walser & Herman Law Firm helps you resolve probate disputes in Florida. Call Walser & Herman Law Firm, an estate planning firm, call us at (561) 750-1040 or send us an email to schedule a consultation today.