Probate is the legal process, with or without the existence of a Will, by which a decedent’s debts are paid and assets owned by the decedent are distributed.
Probate litigation typically involves scenarios where it is alleged that there is:
- Mistake in Execution. Sometimes an interested party alleges a testamentary document was not properly executed in order to have a Will or such invalidated.
- Undue Influence. Sometimes an interested party believes that the person making the Will was either coerced or unduly influenced by a person who was in a position of trust and control.
- Lack of Capacity. Sometimes a lack of capacity claim is asserted based upon the belief that at the time the testamentary document was executed by a person who did not have the requisite mental ability to understand or know the amount and nature of his property, or the person did not know the family members who would ordinary receive such property.Testamentary capacity exists as long as the person understand the nature and extent of his assets and family. Lack of capacity can be the result of the memory loss, natural aging process or the result of a person being on medication.
- Breach of Fiduciary Duty – a person appointed by the court to administer a decedent’s estate has duties and responsibilities with which they are charged. Failure to properly administer an estate can be grounds for a legal probate action. The remedy would be removal of the fiduciary, and damages if applicable. A surcharge action may be appropriate where the fiduciary’s breach causes specific financial loss.
- Removal of Fiduciary – a fiduciary may be removed by the court for failure to carry out the testator’s intentions without bias or undue influence.
- Determination of Heirs – when there is no Will, the Court can be called upon to determine the proper and legal beneficiaries, including but not limited to unacknowledged children who wish to prove their birthrights and make a claim in the estate.
- Elective Share Litigation– enforcing the rights of the surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate.
- Will Construction – is an issue that arises when the Will is incorrect and does not fully address matters relating to the distribution of assets.
- Accounting – beneficiaries have the right to require proof to account for all of the estate assets. If an accounting has been done, and where the documentation appears inaccurate, then the interested party may object to the accounting.
If you receive a NOTICE OF ADMINISTRATION, a document that informs all interested parties of the death of the decedent and the filing of a Will for probate, then you should immediately retain legal counsel to protect your rights.
Once you receive a Notice of Administration, your time to raise legal challenges is limited. Do not wait a single day to schedule an appointment, and you may do so with Attorney Bradley Sherman with a free consultation fee.