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What is Probate Litigation?

July 31, 2019,
Kim Harington,
last will testament

This article is intended for our US audience and is guest authored by Kim Harington on behalf of Upchurch Law.

Courts in Florida handle litigation on a regular basis. Criminal and civil cases have their own forms of litigation, as well as courts dealing with divorce and family law issues. Probate courts also have their share of litigation.

Probate courts handle a number of more specialized legal issues. When someone dies leaving a will, the probate court must approve the will for authenticity and other legal requirements, as well as oversee the administration of the estate. It may also oversee administration of an estate without a will, called an intestate estate. A probate court also supervises guardianship and conservatorship matters and disputes relating to powers of attorney.

In many cases, the court has minimal involvement but issues do arise that lead to litigation. In estate cases, a person may challenge the validity of a last will and testament, claiming the will was forged, the testator was not of sound or the will was not executed properly.

last will testament

A common issue that ends up in litigation is a prenuptial agreement. For example, a husband and wife may have executed a prenuptial agreement before marriage. When one spouse dies, the surviving spouse may challenge the validity of the agreement. This is especially true when the assets of the decedent appreciated substantially during the marriage.

After the will is admitted, an heir or legatee may claim the individual administering the estate is not handling the matter properly. The party making the allegations may ask for removal of the fiduciary and appoint another. At times, a person may challenge whether another is an heir. Finally, a creditor may make a claim against the estate for money owed to the creditor.

In guardianship and conservatorship matters, there may be issues as to whether the guardian is treating the ward and their property properly. Like an estate, a person may ask for removal of the fiduciary and have another appointed.

When a matter is litigated in probate court, special pleadings are often necessary, rather than just an oral allegation in court. Either a motion or petition is needed to commence litigation, just as in other civil courts. Interested parties must be given formal notice to comply with both due process and statutory requirements. Proper notice usually entails written notice to all interested parties, including the court, the heirs and the executor, executrix or other fiduciary. A copy of the motion or other pleading usually must be attached to the pleading.

Probate courts also follow the rules of evidence in Florida. Witnesses may testify and documents may be admitted to evidence, provided they follow these rules. Other parties may object to a question or the submission of documents. The time to file a motion or other pleading often has strict time limits set forth by law. Failing to file the pleading timely, failing to provide proper notice, or failing to present the matter in a procedurally correct manner can all be fatal to an otherwise valid claim.

Those having a dispute in an estate should consider consulting with an experienced probate attorney before filing anything in probate court. The attorney will review the facts and determine whether the claim has merit. If so, the attorney will file the proper pleading in court and provide notice to those required to receive is under the law. When the matter comes for hearing, the experienced attorney will know how to question witnesses, admit documentary evidence and how to best present the case.

If you have questions or need help navigating an estate litigation or probate affair, contact UpchurchLaw: Florida Probate & Estate Litigation Attorney.


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