Probate is a court-supervised process in terms of which a deceased person’s assets are distributed to their beneficiaries in accordance with their will, or, if they died without a will, in accordance with Florida law. This process can be lengthy and complex even in the best circumstances, so when complications arise, it is imperative that you have an experienced probate lawyer to represent you.
Unfortunately, there are many obstacles that can arise during probate, causing significant delays and resulting in mounting legal bills. Let’s take a look at the most common probate complications below.
What Is Probate?
To understand how probate can become beset with challenges, it’s important to first grasp how probate should unfold in an ideal scenario.
In Florida, every probate process is managed by the Personal Representative (or ‘executor’) of the decedent’s estate. The Personal Representative is nominated in the decedent’s will. If the decedent died without a will, then the court will appoint a Personal Representative to manage the probate of the estate. Florida law requires that every Personal Representative be represented by a probate lawyer, unless (i) they are themselves a lawyer, or (ii) they are the ‘sole interested person’ in the proceedings i.e. the only beneficiary of the estate.
Testate and Intestate Probate
In the case of testate probate, the decedent’s will must first be verified before their assets can be identified and distributed (following the settling of any estate liabilities and creditor’s claims). In intestate probate, the decedent’s assets are distributed in accordance with Florida intestate succession law after any claims and liabilities have been settled.
In both types of probate, a judge supervises the process. Legal issues can crop up at any point during probate proceedings, so it’s important to obtain sound legal advice if you are a Personal Representative dealing with a complex deceased estate.
What Challenges Can Arise During Probate?
There are various setbacks that can arise during probate proceedings. For this reason, many people choose to consult with an estate planning attorney so that they can ensure their estate avoids probate.
If your loved one has died and you suspect that one or more of the issues described below might arise during probate, it is crucial that you contact an experienced probate lawyer as soon as possible to begin preparing for whatever litigation may follow.
The validity of the will is contested
When the validity of the decedent’s will is contested, probate immediately becomes a much more complicated process. Unfortunately, this is a fairly common type of probate dispute. A beneficiary, creditor, Personal Representative, or other interested party may challenge the will on the basis that it was improperly executed, that the testator was unduly influenced when drafting and executing their will, that the testator lacked the mental capacity to execute their will, or that the signature on the will was forged.
Further legal disputes can arise in relation to the interpretation of the will if it is ambiguously worded, or if the beneficiaries are not properly named. In some cases, a complication arises because the provisions of the will cannot be executed due to a change in circumstances (e.g. a named beneficiary is now deceased, and it is unclear who should inherit in their stead).
Disagreements arise between family members and beneficiaries
Another common challenge that probate lawyers deal with is disagreement among family members and beneficiaries.
Family members who have been disinherited often contest probate proceedings, resulting in lengthy court battles and expensive legal fees. Family members may also disagree about what to do with the deceased’s house – some may wish for it to be sold and the proceeds distributed among the beneficiaries, whereas others may wish for the home to be kept in the family and passed on to future generations. When the deceased is divorced and remarried with children and step-children, this can also lead to conflict over who inherits what.
The Personal Representative refuses their appointment or breaches their fiduciary duties
If the person who has been nominated as the Personal Representative in the will declines their appointment, this can complicate matters, as the court will need to appoint a replacement. Further issues can arise when a family member objects to the appointment of the Personal Representative (e.g. on grounds that they are unfit for the position) or accuses the Personal Representative of breaching their fiduciary duties.
Disputes are brought by creditors
In some cases, legal claims are brought by creditors of the deceased estate. This may result in a dispute if the Personal Representative denies that the decedent was indebted to the creditor and refuses to pay out the claim. If a creditor holds a mortgage over the deceased’s home and attempts to foreclose on the property, this may also cause complications, particularly where a surviving spouse is involved.
The decedent held assets in multiple states
If the decedent was a wealthy individual, they may have held property in multiple states. This is especially common for wealthy retirees from northern states who own property in Florida and move south during the winter months. Where the decedent owned property in more than one state, their estate will need to be probated in each state where this property is located. Probate will begin in their state of domicile, and then further probate proceedings will commence in other states. This is a very complicated process, and the assistance of a highly skilled probate lawyer will be necessary.
Whether you are the Personal Representative of your loved one’s estate, a family member contesting a will, or a beneficiary seeking to defend against probate challenges, it is critical that you obtain the services of an esteemed probate lawyer. They will be intimately familiar with the law that governs probate disputes and the court procedures that must be followed during contested probate proceedings. Probate lawyers have an in-depth understanding of the Florida probate court system, and will devise a legal strategy that aims to resolve any disputes quickly and efficiently.
Probate attorneys will advise you on the evidence that needs to be collated and presented in court, and will craft a well-researched and persuasive legal argument to give your case the best prospects of success. Probate litigation is a drawn-out and expensive process, and can result in the proceeds of the decedent’s estate only being paid out years after their passing. In some cases, probate lawyers may be able to persuade family members to attend mediation so that a settlement can be reached and lengthy probate litigation avoided.
A Reputable Coral Springs Probate Lawyer Is Ready To Represent You
At The Law Offices of Gary I. Handin, P.A., we have assisted numerous Florida families with probate proceedings, offering compassionate legal representation during an emotionally challenging time in their lives. Our extensive experience, which spans many decades, allows us to provide exceptional legal representation for both contested and uncontested probate.
Whether you require representation in a complex probate matter, would like us to draft your will or help you to create a testamentary trust, or need the assistance of a probate attorney for any other reason, give us a call today at 954-796-9600 and we’ll ensure you get the help you need.
