Probate does not always proceed peacefully.
Disagreements may develop over whether a will is valid, whether someone improperly influenced the deceased person, how estate assets are being handled, whether a personal representative should remain in control, who owns property, or whether beneficiaries are receiving what they are entitled to receive.
At Gold Legacy Law, PLLC, I represent beneficiaries, heirs, personal representatives, and other interested parties in contested Florida probate matters.
Below are answers to 50 common questions about Florida probate litigation and inheritance disputes.
Florida Probate Litigation Basics
1. What is probate litigation in Florida?
Probate litigation involves legal disputes arising before or during the administration of a deceased person's estate. These disputes can involve wills, beneficiaries, heirs, personal representatives, estate assets, creditor claims, ownership disputes, fiduciary conduct, and other contested probate matters.
2. What are the most common probate disputes in Florida?
Common disputes include will contests, undue influence claims, lack of testamentary capacity, disputes over estate assets, challenges to personal representatives, contested accountings, beneficiary disputes, creditor disputes, and allegations that estate property was improperly transferred before or after death.
3. Is probate litigation different from regular probate?
Yes. Probate administration involves collecting assets, addressing claims and expenses, and distributing the estate. Probate litigation begins when interested parties disagree about rights, property, fiduciary conduct, or the validity or interpretation of estate planning documents.
4. Do probate disputes always require a trial?
No. Many disputes are resolved through negotiation, mediation, or settlement. Others require evidentiary hearings or trial when the parties cannot reach an agreement.
5. Can probate litigation happen even if there is a will?
Absolutely. In fact, many probate disputes concern whether a will is valid, what it means, or whether the person named as personal representative is properly administering the estate.
Contesting a Will in Florida
6. Can you contest a will in Florida?
Yes. An interested person may challenge a Florida will when legally recognized grounds exist. Simply being unhappy with the inheritance, however, is not enough to invalidate a will.
7. What are grounds for contesting a will in Florida?
Potential grounds may include lack of testamentary capacity, undue influence, improper execution, fraud, forgery, or revocation, depending on the circumstances.
8. Can I contest a will because I was left out?
Being excluded from a will does not, by itself, make the will invalid. You generally need a legal basis for challenging the document or another enforceable right affecting the estate.
9. Can a child contest a parent's will?
Potentially. A child who has standing may challenge a parent's will if legally sufficient grounds exist, but being a son or daughter does not automatically establish that the will is invalid.
10. Can a sibling contest a will in Florida?
Potentially. The important questions include whether the sibling qualifies as an interested person, what the sibling's rights would be if the challenge succeeds, and whether valid grounds for a challenge exist.
11. Can a will be challenged after probate has started?
Yes, but deadlines matter tremendously. Probate notices and court orders can trigger short time periods for objections and challenges.
12. How long do I have to contest a will in Florida?
There is no safe universal answer without reviewing the probate file. The deadline can depend on the notices served, orders entered, and the type of challenge. If you believe a will is invalid, speak with a Florida probate litigation attorney immediately rather than waiting.
13. What happens if a will is successfully contested?
That depends on the challenge. An earlier valid will might control, particular provisions may be affected, or the estate could potentially pass under Florida intestacy law if no valid controlling will remains.
Undue Influence
14. What is undue influence in a Florida will contest?
Undue influence generally involves improper influence that overcomes the testator's free will and affects the resulting testamentary disposition. These cases depend heavily on the surrounding facts and relationships.
15. What are signs of undue influence?
Possible warning signs include sudden changes to an estate plan, isolation from family, unusual involvement of a beneficiary in obtaining new documents, dependency on the beneficiary, secrecy surrounding changes, or a dramatically different distribution plan.
None of those circumstances automatically proves undue influence.
16. Is leaving everything to one child proof of undue influence?
No. A parent is generally permitted to favor one adult child over another. An unequal inheritance may raise questions depending on the circumstances, but inequality alone does not establish undue influence.
17. What if a caregiver suddenly receives a large inheritance?
That may warrant closer examination, particularly if the caregiver occupied a position of trust or was actively involved in obtaining the estate planning documents. Whether a valid challenge exists depends on the evidence.
18. What if someone took my parent to an attorney and had the will changed?
That fact can be relevant but is not automatically proof of wrongdoing. A probate litigation attorney may examine who selected the lawyer, scheduled appointments, communicated instructions, transported the testator, knew about the changes, obtained witnesses, or otherwise participated in preparing the new estate plan.
19. How do you prove undue influence?
Evidence may include witness testimony, medical records, communications, financial records, estate planning files, relationships between the parties, circumstances surrounding execution, and the beneficiary's involvement in creating or obtaining the challenged documents.
Testamentary Capacity
20. What is testamentary capacity?
Testamentary capacity concerns whether a person possessed the legally required mental capacity to make a will at the time it was executed.
21. Does dementia automatically invalidate a will?
No. A diagnosis of dementia or another cognitive condition does not automatically establish that every will signed by that person is invalid. The person's capacity at the relevant time is critical.
22. Can someone with Alzheimer's disease make a valid will?
Potentially. The diagnosis itself does not necessarily decide the issue. Capacity is evaluated under the applicable legal standard and based on the person's condition when the will was executed.
23. What evidence is used to challenge someone's mental capacity?
Evidence can include medical records, testimony from witnesses, testimony from people who interacted with the person around the time of execution, attorney records, communications, financial activity, and potentially expert testimony.
Personal Representative Disputes
24. Can a personal representative be removed in Florida?
Yes. Florida law permits removal of a personal representative on specified grounds. Removal is a serious remedy and generally requires a legally sufficient basis rather than simple disagreement with the representative.
25. What are reasons a personal representative can be removed?
Depending on the facts, grounds can involve circumstances such as failure to comply with court orders, wasting or maladministration of the estate, conflicts affecting administration, or other grounds established by Florida law.
26. What if the personal representative is stealing estate money?
Suspected misappropriation should be addressed promptly. Depending on the evidence, interested parties may seek an accounting, discovery, restrictions on authority, recovery of property, surcharge, removal, or other appropriate relief.
27. Can a beneficiary demand an accounting from the personal representative?
Beneficiaries and interested persons may have rights to information and accountings during estate administration depending on their status and the circumstances.
28. What if the personal representative refuses to give me information?
The appropriate response depends on what information you are legally entitled to receive. A probate attorney can review the proceeding and determine whether additional disclosure, an accounting, discovery, or court intervention is appropriate.
29. Can the personal representative sell estate property without my permission?
Sometimes. A beneficiary does not necessarily have veto power over every action taken by a personal representative. Authority can depend on the will, Florida law, court orders, and the type of property involved.
30. Can the personal representative buy estate property?
Transactions involving a fiduciary's personal interests require careful scrutiny because personal representatives owe fiduciary duties to the estate and interested persons. Self-dealing can create serious legal issues.
Estate Property and Inheritance Disputes
31. What if someone took money from the deceased person before death?
The estate may potentially have claims if money or property was wrongfully obtained before death. The legal analysis can involve powers of attorney, gifts, joint accounts, undue influence, incapacity, fraud, conversion, or other issues.
32. What if someone used a power of attorney to transfer assets to themselves?
An agent under a power of attorney owes legal duties and does not necessarily have unlimited authority to make gifts or self-interested transfers. The document itself, Florida law, timing, authorization, and circumstances of the transaction should be carefully reviewed.
33. Can property transferred before death be recovered by the estate?
Potentially. If a transfer was unauthorized, fraudulent, the product of undue influence, or otherwise legally improper, litigation may seek to recover the property or its value. The result depends on the particular transaction and available evidence.
34. What happens if family members disagree about who owns an asset?
Ownership disputes can become part of probate litigation. Bank accounts, real estate, business interests, vehicles, valuable personal property, and assets transferred shortly before death can all create disputes requiring evidence of ownership.
35. What if someone was added to a bank account before death?
Being named on an account can have significant consequences, but the account documents and circumstances matter. A dispute may involve ownership rights, survivorship, the source of funds, the decedent's intent, capacity, or allegations of improper conduct.
36. Can heirs fight over personal property?
Yes. Jewelry, artwork, firearms, collectibles, family heirlooms, vehicles, and even items with modest monetary value can become major sources of conflict. The will, ownership, personal property memorandum when legally effective, and estate administration all may matter.
37. What happens when heirs disagree about selling a house?
The answer depends on whether the property is part of the probate estate, whether it qualifies as protected homestead, who inherited it, and the stage of administration. Once multiple beneficiaries become co-owners, additional real-property remedies may become relevant.
Beneficiary Rights
38. Can a beneficiary sue a personal representative?
Potentially. A beneficiary may seek relief when a personal representative violates fiduciary duties or causes damage to the estate or beneficiary. The available remedy depends on the alleged conduct.
39. Can a beneficiary be removed from a will by the personal representative?
No. A personal representative administers the estate; the personal representative does not have authority simply to rewrite the deceased person's valid will because of a disagreement with a beneficiary.
40. Can a personal representative withhold a beneficiary's inheritance?
Distributions may appropriately be delayed while legitimate estate matters remain unresolved, including expenses, creditor claims, taxes, property administration, litigation, or other obligations. A personal representative cannot simply withhold an inheritance indefinitely for personal reasons.
41. What if the personal representative favors one beneficiary?
A personal representative owes fiduciary obligations and must administer the estate according to the governing documents and Florida law. Improper favoritism may warrant legal action depending on the conduct and resulting harm.
No-Contest Clauses and Disinheritance
42. Can a Florida will prevent someone from contesting it?
Florida law generally makes provisions in wills purporting to penalize an interested person for contesting the will or instituting proceedings relating to the estate unenforceable. This is sometimes referred to as Florida's treatment of no-contest or in terrorem clauses.
43. Can a parent legally disinherit an adult child in Florida?
Generally, an adult child can be excluded from an estate plan, subject to other applicable rights and circumstances. Florida provides particularly important protections for surviving spouses and homestead.
44. Can a surviving spouse be disinherited in Florida?
Florida provides surviving spouses significant statutory rights that can limit an attempt to completely disinherit a spouse. Depending on the circumstances, these can involve the elective share, homestead, exempt property, family allowance, and other rights.
Probate Litigation Costs and Procedure
45. Who pays attorney's fees in Florida probate litigation?
There is no rule that the estate automatically pays everyone's litigation fees. Florida law contains provisions governing attorney compensation and potential fee awards in probate matters, but responsibility can depend on the claims, parties, benefit to the estate, court rulings, agreements, and circumstances.
46. How long does probate litigation take?
There is no standard timeline. A focused dispute may resolve relatively quickly through settlement or mediation, while a case involving extensive discovery, experts, multiple parties, or trial can take substantially longer.
47. Can probate litigation be settled?
Yes. Many probate disputes are resolved through negotiated settlement or mediation. Settlement can allow families to control the outcome and avoid some of the cost, uncertainty, and delay associated with trial.
48. Is mediation required in Florida probate litigation?
A court may order mediation, and parties can also agree to mediate voluntarily. Whether mediation is required in a particular case depends on the court, proceeding, and applicable orders or rules.
As a Florida Supreme Court Certified Circuit Mediator, I have seen how mediation can provide parties with an opportunity to resolve difficult estate disputes without leaving every decision to the court.
Acting Quickly in a Florida Probate Dispute
49. What should I do if I suspect something is wrong with an estate?
Preserve documents and communications, obtain copies of available probate filings, and speak with a Florida probate litigation attorney promptly. Avoid removing estate property or taking unilateral actions that could create additional legal problems.
Timing can be extremely important in probate litigation.
50. When should I hire a Florida probate litigation attorney?
You should consider obtaining legal advice as soon as you believe a will may be invalid, estate assets may be missing, a fiduciary may be acting improperly, or your inheritance rights may be threatened.
Waiting until the estate is ready to close can make some disputes significantly more difficult—and certain objections may already be barred.
Florida Probate Litigation Attorneys
Probate disputes frequently involve more than money. They can involve family relationships, a parent's final wishes, allegations of manipulation, property accumulated over a lifetime, and disagreements about whether the person entrusted to administer an estate has fulfilled that responsibility.
At Gold Legacy Law, PLLC, I represent clients in Florida probate disputes involving will contests, undue influence, lack of testamentary capacity, fiduciary misconduct, removal of personal representatives, estate accountings, inheritance disputes, disputed transfers, estate property, and other contested probate matters.
Our firm serves clients in Miami Lakes, Miami-Dade County, Broward County, Palm Beach County, and throughout Florida.
If you believe something is wrong with an estate, or you are a personal representative defending against allegations involving your administration, obtaining advice early can help you understand your rights, obligations, deadlines, and available options.
Contact Gold Legacy Law, PLLC at 305-556-5209 to schedule a consultation regarding a Florida probate dispute.