Probate Litigation

Many disputes can arise during the probate administration process. The law firm of Hertz Sager, has experience and knowledge representing beneficiaries, personal representatives and creditors in all matters of probate litigation.

Generally, probate litigation arises after a person or entity receives a Notice of Administration. This is a formal document that alerts all interested parties of the death of the decedent, the filing of a will for probate, and that an objection to the probate proceedings must be commenced within a certain period of time or be forever barred.

The right of authorization to contest a will extends to spouses, creditors, or others having a property right or claim against the estate being administered, as well as to heirs, distributees, legatees, and devisees.

Probate litigation generally involves challenging or defending the validity of a will or a trust, determining the meaning and construction of a will or a trust, the proper administration of a will or a trust, resolving creditor claims, determining the rights of surviving spouses and what assets are included in the probate estate.

In Florida, a will is void and unenforceable if the execution is procured by fraud, duress, mistake, or undue influence. Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid if it is not invalid for other reasons. If the revocation of a will, or any part thereof, is procured by fraud, duress, mistake, or undue influence, such revocation is void.

If a proceeding of revocation takes place by any of the authorized parties, the personal representative must defend the claims, and any legatee, devisee, or other person interested in the estate is allowed to appear on application, and to prosecute or defend as though they were a party to the proceedings.

Types of Probate Litigation

There are several grounds for contesting a decedent’s will, including:

  • Mistake in Execution – Florida Statute §732.502 sets forth the execution requirements for a will to be valid in the State of Florida. If any of these provisions are not met then the document is not a valid will under Florida law.

  • Undue Influence – The undue influence required for invalidation of a will is conduct amounting to duress, force or coercion to such a degree that the free agency and willpower of the testator is destroyed.

  • Lack of Testamentary Capacity – According to §732.501, a person must be of sound mind in order to make a will. The requirement of mental soundness generally means that the testator must be able to generally understand the nature and extent of the property devised, the relationship between the testator and the natural objects of the testator’s bounty and the nature of the testamentary act.

  • Probate litigation can also involve the following: determination of heirs, elective share litigation, breach of fiduciary duties, removal of the fiduciary, and accounting problems.

If you are in need of a qualified Probate attorney, contact the law offices of Hertz Sager, online through this website, or at 305.444.3323.