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Naples Estate Planning Lawyer > Challenges To Probate

Challenges To Probate

Probate is the court-supervised disposition or transfer of property/assets when someone passes away known as the decedent. The decedent is the person who has died and had the assets to be transferred. Challenges to probate proceedings are allowed in Florida but for legal reasons and within certain requirements.

concept of probate, lawyer writing notesIf someone has a will (Last Will and Testament) when they pass away, then the probate court will make sure that the beneficiaries designated in the will, receive the assets. The court will also make sure any legitimate creditors will be paid. A creditor is a person or entity to whom money is owed by the decedent.

We recognize that during probate, therefore, a deceased individual’s property is distributed to the parties with a legal right to it. Within this process, there is a legal way to make challenges to probate by filing objections to the transfer of assets if you believe that a decedent’s estate is not probated properly.

In Florida, we are required to follow the laws governing probate which are contained in the Florida Probate Code in Chapters 731 through 735 of the Florida Statutes.

Who Can Make Challenges to Probate Proceedings?

Any “interested person” can object to proceedings in Florida, meaning they can make a challenge to probate processes. An interested party is defined as anyone who can reasonably expect to be affected by the outcome of the probate proceeding. Common examples of interested parties include:

• Surviving spouses

• Beneficiaries – A beneficiary is anyone the decedent named in their will to receive a benefit (money, property, or other assets)

• Heirs- Generally, the decedent’s next of kin—closest family members related by blood

• Personal representative – also known as the executor

• The decedent’s creditors – A creditor is a person or entity to whom money is owed by the decedent

Reasons to Challenge or Object to Probate Proceedings

First of all, you cannot object to how the decedent designated who was to receive an asset from their estate. You cannot challenge it simply because you were unhappy with the terms or believe you were unfairly treated by the decedent. But you can challenge it if you are an interested party that has a legal argument why the will may be invalid.

You must have a legal basis for believing the will is invalid. Note this definition: A testator is the person who makes or has made a will; the one who dies leaving a will.

Under Florida law, you can contest a will as being invalid for the following reasons:

• Undue Influence: Undue influence occurs when a will does not represent that testator’s knowledge and free will. Instead, the terms of the will were gotten by inappropriate persuasion, duress, fraud, force, or coercion of the decedent before their death

• Forgery: Forgery occurs when the signature of a will is faked or when the will is modified by someone other than the testator after they signed the will and was changed without his or her knowledge or consent.

• Fraud: Fraud occurs when, before the testator passed, they were tricked into signing the will. Often this happens when they are told the lie that they are signing a different unimportant document. A common victim is a trusting elderly relation.

• Lack of mental capacity: A testator must have sufficient mental capacity when executing a will for it to be valid. Sufficient mental capacity is if the testator understands

1) the nature and extent of the property to be disposed of;

2) their relationship to the individuals who would benefit under the will; and

3) the effect of the will when executed.

• Execution requirements were not met: Specific requirements must be met for a will to be valid in Florida. For example, the will must be executed (put into effect) in the presence of two witnesses, signed by the testator, and the testator must be at least 18 years old.

Dying Without a Will

When someone dies without a will, they are said to die “intestate.” Their estate is still probated and, in this case, Florida inheritance law decides to whom the property is distributed. You can object during the proceeding if you do not believe you are receiving your rightful share of the estate.

Florida Intestate Succession

Florida Statute Sections 732.101-.109 covers this process In Florida, when someone passes away without a will or a trust, all assets go to the closest relatives in this specific order.

1) The first to inherit is the surviving spouse. There must be a valid marriage to be a surviving spouse. If there are no children, the spouse gets everything.

2) Next in line are the children. If a child dies before the parent, then a grandchild may inherit a portion of the estate. Children must be legally adopted or biological children to fit in this category. Step-children are not included.

3) If the decedent dies without a spouse or children; then, the decedent’s parents are next in line to inherit the estate.

4) If none of the above are alive, then the deceased siblings would divide the estate

Objection to the Personal Representative

Another type of probate objection is related to the personal representative. Florida Statute defines a personal representative as the person appointed by the probate judge to settle and distribute the estate of the decedent in accordance with the terms of the decedent’s will and to do so as expeditiously and efficiently as is consistent with the best interests of the estate.

You can object to the appointment of a personal representative if you do not believe they are legally qualified.

In Florida, a personal representative must be:

• A Florida resident or related to the decedent;

• Mentally and physically able to perform their duties;

• At least 18 years old; and

• Not have been convicted of a felony.

• must have a fiduciary responsibility to the estate

Fiduciary responsibility is the legal responsibility to act solely in the best interest of another party. “Fiduciary” means trust, and a person with a fiduciary duty has a legal obligation to maintain that trust. A personal representative must have a fiduciary responsibility to the estate. If the personal representative breaches their duties, you can object. If the court agrees, then the personal representative can be removed or ordered to repay the estate for any damages, even if the breach was unintentional.

Personal Representatives can be held liable to estate beneficiaries. Personal representatives who hire a probate lawyer like James R. Nici benefit from the help of the attorney. If an error occurs, then the probate lawyer assumes the liability. It is unlikely that a qualified probate lawyer will make mistakes that results in a breach.

Thinking of Challenging Probate Proceedings

– Call Naples Probate Lawyer James Nici

If you want your objection to be successful, you should consult with Naples probate lawyer James Nici and Nici Law Firm. We will represent your interests and facilitate the challenges to probate if it is legitimate. Mr. Nici has a thorough knowledge of the applicable Florida laws and local procedures of probate court. There are strict deadlines when filing a probate objection, so do not delay.

James Nici is an experienced Naples attorney with over 25 years of experience and Board-Certified by the Florida Bar as a Specialist in Wills, Trusts, and Estates. He can help you prepare an objection in a probate proceeding. He provides service in  estate planning, Business Planning including succession plans, asset protection and more.  Call 239-449-6150 or contact us online to set up a complimentary consultation with Naples probate attorney James R. Nici.

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