Probate

Overview

The challenges of dealing with a loved-one’s death can be magnified by the need to distribute their assets to their beneficiaries, and resolve the demands of outstanding creditors.  Probate is the process where a court supervises the process of identifying and gathering a decedent’s assets, paying the decedent’s valid debts, and distributing the remaining assets to the decedent’s beneficiaries.  This is typically done by the Personal Representative of the estate.  For Florida residents, probate is conducted in the county in which the decedent was domiciled (usually their residence).  For non-residents, probate is conducted in any county where the decedent’s property is located.

Probate Litigation

While our firm is not currently taking litigation, experienced legal counsel at the transaction and negotiation stage can often avoid the need for litigation.  Common probate litigation includes:

  • Validity of Will or determination of priority between competing Wills
  • Will contests due to the decedent’s lack of capacity, or the exercise of undue influence upon the decedent
  • Construction of Will to determine the decedent’s intent
  • Determination of proper heirs of the decdent
  • Litigation over surviving spouse’s elective share (surviving spouse may elect to claim 30% of the “elective estate” under § 732.2065, Fla.Stat.)
  • Recovery against Personal Representative for breach of their fiduciary duties
  • Removal of Personal Representative
  • Accounting of assets, liabilities, income, and expenditures

Challenges

Many challenges may arise during an estate’s probate, such as:

  • Are there competing versions of the Will?
  • Who is entitled to act as Personal Representative?
  • How are assets of the estate to be valued?  Does the estate possess the funds to conduct an appraisal of rare or unique assets such as antiques, art, furniture, jewelry, or coins?
  • Who are the valid creditors of the estate?  How are invalid creditors’ claims challenged and disposed of?
  • Did any individuals ingratiated themselves with decedent prior to death and now possess assets which are rightfully assets of the estate?
  • Is a pre- or postnuptial agreement between the decedent and a spouse enforceable as to the surviving spouse’s interest (or lack thereof) in the assets of the estate?
  • Is the Personal Representative fulfilling their fiduciary duty to act in the interest of all interested persons, or serving themselves to those persons’ detriment?
  • Have beneficiaries expressed an intent to work together to maximize each beneficiary’s asset protection and tax minimization?