probate litigation explained


In Florida, probate litigation is one of the most hotly-contested areas of the law; here, surviving family members use the judicial system to correct an array of injustices. Probate is the legal process by which a person's debts are paid and assets owned by the decedent are distributed upon death. Probate litigation frequently arises in the context of a Will contest. When a decedent has created a Last Will and Testament and it is offered for probate, Florida law grants creditors and heirs various rights, privileges and limitations that must be strictly followed.

Usually, Florida probate litigation is first considered by a client when they receive a Notice of Administration alerting them that an objection to the probate proceedings must be commenced within a certain period of time or be forever barred. Probate litigation is the broad concept of challenging the contents of the Last Will and Testament; a provision of the Last Will and Testament; the appointment of an executor (Florida law refers to an Executor or Executrix as a Personal Representative); or the entire document itself. The facts of each dispute will define the exact cause of action (e.g., Lack of Mental Capacity, Undue Influence, Duress, Intentional Interference with an Expectancy, and/or Improper Signing of the Will) that needs to be prosecuted or defended. However, one should never rely on a promise to "even out" the estate or "take care of it" soon if served with a Notice of Administration. Once, the very limited time period (usually 20 days) passes, any promises, representations or guaranteed to settle any estate dispute or disagreement are worthless and unenforceable unless an attorney has entered into an official settlement agreement.

a) Will Contest - a will contest is a form of litigation conducted in the probate court. There are several bases for contesting a decedent’s Last Will & Testament:

i) Mistake in Execution – Florida Statute §732.502 sets forth the execution requirements for a Will to be valid.

ii) Undue Influence – an undue influence claim challenges whether the person making the Will did so freely and without being coerced by a person who was in a position of trust and control.

iii) Lack of Testamentary Capacity - a lack of capacity claim is asserted based upon the belief that at the time the Will was executed the person making the Will did not have the requisite mental ability to understand a) the amount and nature of his property, b) the family members and loved ones who would ordinary receive such property, and c) how the Will disposes of such property. The standard for “testamentary capacity” is not as high as general competency. A person need only understand the nature and extent of his assets and the natural objects of his bounty (his family). Lack of capacity can be the result of the natural aging process or the result of a person being on a substantial amount of medication, e.g. heavy morphine to treat end-stage cancer. Lack of capacity litigation relies on medical records and the irrational conduct of the testator prior to executing the Will.

b) Will Construction – sometimes Wills are vague, beneficiaries have died or disappeared, or the document does not properly dispose of the entire estate. In these instances, the assistance of the court is sought to determine how a decedent’s estate should be distributed.

c) Determination of Heirs – sometimes a decedent leaves no will and had little contact with his family and the heirs (as defined by the intestacy statutes) need to be determined by the court. Sometimes, the decedent has formerly unacknowledged children who wish to prove paternity/maternity and make a claim in the estate.

d) Elective Share Litigation – the surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate. In general terms, absent a valid pre-marital agreement, a surviving spouse has the right to claim 30% of the elective estate. See Florida Statute §732.2035 for a description of the property that enters into the elective estate. You might be surprised to learn that pay-on-death accounts and gifts made within one year of death can be included when determining the value of the elective estate.

e) Breach of Fiduciary Duty – a person appointed by the courts to administer a decedent’s estate has duties and responsibilities with which they are charged. Failure to properly administer an estate, either by overt act or by omission, can be actionable. Sometimes the remedy sought is removal of the fiduciary, but sometimes, when funds have been wasted or mismanaged or excessive fees have been taken, the remedy is a surcharge action. For a list of the duties and powers of the personal representative, see Florida Statute §733.601-619.

f) Removal of Fiduciary – a fiduciary may be removed by the court for cause.

g) Surcharge Action - The purpose of a surcharge against a fiduciary is to restore the losses sustained by the fiduciary’s breach of duty.

h) Accounting – Beneficiaries have the right to an accounting. If one has not been provided, then a beneficiary may seek the court’s assistance to compel the fiduciary to account for the estate assets. If an accounting has been provided and is objectionable for any reason, then the beneficiary may object to the accounting.


If you are in need of an attorney with probate litigation experience, contact for a free consulation today.


The material on this page represents general legal advice. Since the law is continually changing, some of the provisions contained here may be out of date. It is always best to consult a probate attorney about your legal rights and responsibilities regarding your particular case.