Will Contests

Florida Attorneys

Serving You and The State of Florida

A living will is a legally protected document that coordinates the distribution of assets upon a loved one’s death. Writing and maintaining a will is an essential step in estate planning to simplify the process of implementing your final wishes and appointing guardians to any minor children.

This document enables you to arrange for specific assets to be left to individual family members or friends and can be amended throughout your life to accommodate any changes in circumstance. However, especially if your will is not amended appropriately throughout the course of your life, it is possible that it may be contested upon your death.

What Does It Mean To Contest A Will?

If a will does not appear to reflect the testator’s intent, a beneficiary or other interested party may bring a formal objection before the court. In general, someone typically files a will contest because they believe the testator was not of sound mind, that the individual was a subject of fraud or undue influence, or that they lacked testamentary capacity. Assertions can also arise for forgery or technical flaws. You may contest a will in separate parts or its entirety.

Contesting a will can add months or even years to the settlement of a loved one’s estate. If a will is successfully challenged, it is null and void, and the distribution of assets will proceed as though the testator had never written a will. Assets will be distributed through probate according to standard procedures.

Who Can Contest A Will?

You can contest a will if your named in the will, if you were named in a previous version of the will, or if you would have been eligible as a beneficiary had the will not existed. For example, if you are a child or spouse left out of the will, you have the right to contest. Additionally, if your share as a beneficiary was significantly decreased since previous versions, you are entitled to challenge its validity.

How Do I Contest A Will?

If you intend to challenge a will, consult with an experienced attorney to evaluate your options. In Florida, the standard statute of limitations for filing a petition with the probate court is three months after the Notice of Administration is served. After three months, the objection is barred by the state, and no one may contest the contents of the will. Only a misstatement regarding the deadline may qualify for an extension.

Your attorney should file a petition with the probate court in the county of the deceased to request that their will be deemed invalid due to fraudulent activity, undue influence, or other manipulation. You may then be required to sit for a deposition or submit evidence to the court. Depending on the case, you may be asked to provide testimony.

What Does The Probate Process Look Like?

There is typically a legal process that must be followed during probate, so it is a great idea to have an attorney present as much as possible. The essential steps include:

  1. Someone is appointed as the administrator of the estate. If there is a will, it typically names this person, who is then referred to as the “executor.”
  2. The will then must be proven valid in court. State law governs the probate process, so following state requirements is essential to moving things along.
  3. The deceased person’s property is identified and inventoried. Nothing should be distributed or sold until the probate is complete. Assets that are included in the probate process are those that the decedent owned before their death. These could be in the form of bank accounts or investment accounts, any life insurance policies or retirement accounts, and any real property which the decedent owned at the time of their death. This list does not contain everything, but it is a start.
  4. All properties are appraised.
  5. Debts and taxes owed are paid. This is why probate is essential. It pays off any debts that the decedent had and helps wrap up the decedent’s financial affairs.
  6. The remaining assets are distributed according to the will and the decedent’s final wishes.

When there is no will, the process differs slightly.

What is Intestate?

In the event an individual dies without a will, it is called “intestate.” Florida has specific laws about the distribution of assets if there is no will. It can be subject to certain exceptions that may surprise some people. The difficulty of intestate succession is why it is critical to have the right representation by your side.

If there is no will and the decedent has no heirs, the state of Florida will step in and take any assets the decedent may have had. There are specific rules governing how the property is to be distributed if the decedent did have heirs, and those rules dictate where the property is to go in the absence of a will.

Who is involved in the probate process?

There are many parties involved in the probate process. You will be dealing with:

  • the local courts
  • a local judge
  • the decedent’s representative
  • any attorney who may be hired to give legal advice about the probate process and help facilitate the process
  • any debtors who may have money owed to them by the decedent

Additionally, if there is an IRS issue, you may be dealing with the IRS at some point to square away the decedent’s taxes. As you can see, the list is extensive, and it can get overwhelming very quickly, so having an attorney by your side who can help make this process as smooth as possible is always the preferred route.

What Happens After A Will Contest?

There are several potential outcomes of a will contest, including:

  • The will is deemed invalid, and all assets are turned over to probate for distribution according to standard state procedures.
  • The will is deemed valid, and the distribution of assets proceeds as intended.
  • Part of the will is deemed invalid, so only the enforceable provisions are carried out

If a will is deemed unenforceable, but there are previous versions of the will that are considered valid, one of those may qualify for reinstatement. It is also possible for other beneficiaries to appeal the outcome of the will contest, which could further lengthen the process and delay settlement. If you win the case without an appeal, then you are entitled to take control of the assets you claimed, including real estate property, accounts, cash, or vehicles.

What Is A No-Contest Clause?

In some states, courts can enforce a no-contest clause that is often written in a will to disincentivize beneficiaries from contesting its contents. If a challenge of the will fails, that individual would therefore disinherit their portion of the assets. However, Florida Statute section 732.517 states that “a provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.” Therefore, if you contest a will in Florida, you are still entitled to your bequeathed assets even if you lose the challenge.

Can I Prevent My Will From Being Contested?

Ensuring that your will was signed in the proper environment, by an estate planning or elder law attorney, with suggested witnesses and a notary is the best way to protect your will from challenges. There are several important considerations to make when writing and signing your will:

No-Contest Clause

A no-contest clause is intended to disincentive beneficiaries by disinheriting them entirely if the contest fails. It can serve to reinforce that you were competent at the time of signing and fully believe that the distribution of assets was well-intended and just. However, while this clause may reiterate your position, the state of Florida does not enforce no-contest clauses, so they may not be as effective in protecting your will.

Make Assets Payable Upon Death

This will enable any accounts or savings to be transferred directly to the individual without going through probate court. So long as the beneficiary is alive at the transfer time, they maintain the right to the account regardless of the will.

Notarize Your Documents

Notarizing your will is another way to protect your document from being challenged. However, a notarized will can still be produced under false pretenses or without a sound mind.

Reinforce Your Decisions

If difficult decisions are made in your will or beneficiaries are selected for a specific reason, including a letter of intent within your estate plan can help ease tension or reinforce a position. For example, if you choose a guardian for your children that may come as a surprise to your family members, it would be wise to include a letter that reiterates your decision. If possible, you can also have that conversation while you’re alive to let them know face-to-face why you made the choices you did in your will.

Prove Competency

Consult with your attorney or family doctor to develop proof of mental competency at the time of signing. Such proof could be a series of questions or a written worksheet. Ask them to maintain records and include a copy with your will.

Omit Beneficiaries In The Process

Don’t include your beneficiaries, particularly those who have the majority to inherit, in the development or signing process of your will. This could give the appearance of undue influence and create reasonable grounds for challenging its entirety. Work with your attorney privately to avoid any appearance of manipulation.

Record The Signing

A video of the signing can help reinforce to the courts and beneficiaries that you were fully competent and signed on your own free will. Arguments for coercion or undue influence will be more challenging to present.

Is There An Alternative To A Will?

Rather than establishing a will, a revocable living trust places all of your assets into a trust in which you can continue to access throughout your lifetime. The critical difference is that the trust owns your assets rather than yourself. Additionally, you retain your right to privacy as anyone not listed as a beneficiary will not know the details of the trust. Upon your death, any assets bequeathed to the trustee are transferred and become their immediate property without the need to pass through the probate court process.

Many individuals will utilize a revocable living trust to avoid involving probate. However, in Florida, there is a two-year statute of non-claim in which a trust is still responsible for any outstanding debts. In the two years after your death, creditors may file claims against your estate. If an estate is facing extensive debt or multiple creditors, a trustee can take the trust to probate to assist with settling the outstanding debts.

Another option is an irrevocable living trust, which operates in the same way except that, once written, it cannot be revoked. Once assets are included in an irrevocable trust, they cannot be removed and are no longer considered your personal assets. Unlike a revocable living trust, these do not have a two-year statute of non-claim. Whether selecting a will, revocable trust, or irrevocable trust, an experienced attorney can help you navigate the process and ensure your assets’ full protection.

Though forming a trust is the right decision for many, a will is always necessary if you have minor children. Your will holds the crucial responsibility of naming a guardian for minor children. The experienced estate planning attorneys at the Lopez Law Group can help whether you want to establish an estate plan that will be difficult to challenge, or if you need to contest a will left by a relative. Contact us today to discuss all your estate planning or will contest needs.

 

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