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Tampa Probate Law

Tampa Florida Probate Lawyers

Tampa Florida Probate,Elder Abuse, Nursing Home Abuse Litigation

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The following information has been provided by The Coleman Law Firm, PLLC.

Florida Probate Litigation

Florida probate lawyers and attorneys represent beneficiaries and personal representatives in probate courts in Florida dealing with probate litigation matters.

The probate litigation lawyers and attorneys may represent beneficiaries, personal representatives or estate creditors in will contest cases on an hourly fee basis. In some situations lawyers will take a case on a contingency fee basis or other alternative billing arrangement.

There are two major types of litigation in probate, one is a will contest and the other involves estate litigation.

Will Contests

A Will contest is a form of litigation challenging the admission of a Will to probate or seeking to revoke the probate of a Will that is already pending before the probate court, or a claim that there is some impropriety taking place in the administration of the probate estate. A person cannot challenge the validity of a Will in Florida probate court simply because he or she does not like its provisions, or did not, in their opinion, get what they wanted. Challenging the validity of a Will in Florida probate court is not contingent on the elements of "fairness" or the reasonableness of its provisions or on the timing of distributions from the probate estate (such as if you prefer an immediate distribution, but the Will provides for you to receive your distribution in multiple distributions at several year intervals).

A Will is likely to be attacked in Florida probate court on the basis that the person who signed the Will lacked mental capacity (senile, dementia, delusional, unsound mind) at the time the documents were created, that the Willmaker was subjected to fraud, coercion or undue influence during its creation and implementation, that there are ambiguities in the document, or the Will is a forgery or does not conform to the legal requirements of Florida probate law, such as the manner in which it was signed, or the number and nature of the witnesses.

If the Will is invalidated by the Florida probate court, the probate court may disallow only that part of the Will that was challenged or it could invalidate the entire Will. The assets of the probate estate might in that case be distributed as if the person died without a Will ( intestacy), or pursuant to the distribution provisions of a prior Will, depending on the specific facts and circumstances.

When someone files an objection in probate court to the Will being probated, or produces a different Will, what is known as a "Will contest" has begun. Will contests are not rare. Even though few people are successful challenging a will in Florida probate court, such contests can be extraordinarily costly and create substantial delays in the completion of the probate of the estate.

You can not contest a Will in Florida probate court just because you think the results provided by the will are not fair or are unreasonable. For example, if you feel your recently deceased next door neighbor's out of state children are awful people who didn't give her proper respect and they do not deserve to receive any assets from her probate estate, that will not provide a sufficient basis to challenge her will. To have the right to contest a Will in Florida probate court a person must have legally recognized "standing" to object.

A person must have legal “standing” to contest a Will in Florida probate court. A child who was disinherited by the Will of an angry parent, or perhaps by a kindly parent who felt that the local charity rather than his children would benefit more from his assets, would have legal standing to initiate a "Will contest". Or, should a Will give one sibling a disproportionately large share of a parent's probate estate and the other child, or children, a disproportionately small share, the ones receiving less than their proportionate share have standing to challenge the will in Florida probate court. Another example would be if a later Will is less favorable to a beneficiary than an earlier Will, or no Will at all, then that person has legal standing to challenge the later Will.

The filing of a Will contest sometimes is directed at removing the personal representative (executor) appointed by the Will or the Florida probate court, in an effort to have a different person or trust company serve as Personal Representative for the probate estate, or as a trustee of Trusts created by the Will.

Most of the challenges to invalidate a Will are filed by potential heirs or beneficiaries who were entitled to little or nothing from the terms of the Will that is being probated. According to Florida probate law, Will challenges must be filed in probate court within a certain amount of time after receiving notice of the death or petition to admit the Will to probate.

The most common challenges to a Will include:

(1) the Will was not properly written, signed or witnessed, according to the Florida probate law requirements

Lack of Proper Formalities. Proper execution of a will requires that the will be signed by the testator and witnessed by two witnesses, who also sign the will. A will can be contested on the grounds that it was not properly drafted, signed, or witnessed in accordance with the applicable Florida probate law.

(2) the decedent lacked mental capacity at the time the Will was signed

Lack of Capacity. Under Florida probate law, a testator is required to have mental competency to make a will and to understand the nature of his or her assets and the people to whom the assets are going to be distributed. A will can be declared void if lack of capacity can be proven. Typically, incompetence is established through a prior medical diagnosis of dementia, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the deceased around the time the will was executed.

(3) there was fraud, duress or undue influence exercised by someone who had a special relationship with the deceased

Undue Influence. Undue influence occurs when the testator is compelled or coerced to execute a will as a result of improper pressure exerted on him or her, typically by a relative, friend, trusted advisor, or health care worker. In many cases, the undue influencer will upset a long established estate plan where the bulk of the estate was to pass to the direct descendants or other close relatives of the decedent. Some undue influencers are new friends or acquaintances of the decedent who “befriend” the decedent in the last months or years of life, typically after the decedent has suffered some decline in mental ability. In other situations, one child of the decedent, often a caregiver, will coerce the decedent to write the other children out of the will. Undue influencers can also be health care workers or live in aides who implicitly or explicitly threaten to withhold care unless the estate plan is changed in favor of the health care worker.

(4) the Will was a forgery

(5) breach of fiduciary duty

Breach of Fiduciary Duty. The personal representative of a probate estate owes the beneficiaries of the estate certain fiduciary duties of honesty, prudence, and loyalty. When those duties are violated by a personal representative, a bequest may be put in jeopardy. Florida probate lawyers and attorneys can represent beneficiaries and personal representatives with the following issues

a. Failure to follow the Florida Probate Code, Rules of Probate Procedure, or an order of the probate court

b. Probate Fraud

c. Improper investments

d. Self dealing

e. Excessive compensation

When the personal representative’s negligence or probate fraud results in a financial loss to the estate, the probate court can remedy the situation through a monetary award against the personal representative or others involved in the wrongdoing. The Florida probate court can also remove the personal representative if cause can be shown.

(6) elective share

Florida Elective Share. The Florida elective share provides surviving spouses with a portion of a deceased spouse’s estate according to a detailed formula, based on the probate and non-probate assets of the deceased. If the surviving spouse is displeased with the inheritance created by the estate plan, the surviving spouse can instead take the Florida elective share, if the election is made in a timely manner. Under Florida probate law, the elective share is 30% of the augmented probate estate.

Most surviving spouses can benefit from hiring a Florida probate lawyer to ensure that the Florida elective share is computed properly and distributed according to Florida probate law.

The surviving spouse has 6 months from the receipt of the probate estate's notice of administration to make the Florida elective share election. Once the election is made, the personal representative of the probate estate is required to prepare and file the elective estate inventory, which is filed with the court.

The time for making a will contest in Florida is short, typically 90 days after the Notice of Administration has been provided by the Personal Representative. Therefore, prompt action is required to bring your lost inheritance back to life.

Not just a will can be challenged under these grounds. A trust can be challenged under the same grounds, as well as a real estate deed or a beneficiary designation on a financial account. There are many situations where the undue influencer will trick or persuade a weakened person to sign over valuable real estate, a bank account, or other property directly to the influencer, in the hope that they will have left the scene before the wrongdoing can be discovered. Sometimes, the undue influencer will be added as a beneficiary on bank accounts in place of the heirs to whom the decedent intended the account to pass.

If the wrongdoing is discovered prior to the victim's passing, a common way for a loved one to start to clean up the situation will be to create a Florida guardianship, which will allow the guardian to use the Florida probate court's jurisdiction to reclaim assets that were fraudulently removed. If an estate plan was also changed because of undue influence, the Florida guardianship will also allow evidence to be collected for use at a subsequent will contest proceeding in Florida probate court.

Estate Litigation

Estate litigation arises when a lawsuit is required to be filed on behalf of the decedent or the decedent's probate estate or heirs, or when a third party files suit against the probate estate.

Estate litigation may include opening a probate estate to file a wrongful death lawsuit against those responsible for the death of the decedent. Estate litigation can also include situations where the heirs, family members and beneficiaries are not disputing what the decedent did with his or her probate assets through the Will or trust; instead, the estate litigation may be a lawsuit against third parties who may be indebted to the decedent, who violated the terms of a contract with the decedent, or who refused to turn over property belonging to the probate estate. Typcially, such litigation involves someone other than the heirs and beneficiaries of the probate estate, though heirs or beneficiaries may be involved.

Estate litigation also includes situations where third parties may file suit against the probate estate for debts the decedent owed to the third parties, or if the decedent may have caused injury to another, or breached his contractual duties to another.

This material represents general legal information. Since the law is continually changing, some provisions may be out of date. It is always best to consult an experienced Florida probate litigation lawyer or attorney about your legal rights and responsibilities regarding your particular case.

Florida Counties and cities in which Tampa Florida estate planning, asset protection planning, Medicaid spenddown planning, elder law, guardianship, nursing home abuse, and probate lawyers and attorneys offer Tampa Florida estate planning, asset protection planning, Medicaid spenddown planning, elder law, guardianship, nursing home abuse and probate services:

Alachua	Gainesville, Alachua, Hawthorne, High Springs, Waldo, Newberry, Micanopy
Bay	Panama City, Panama City, Beach, Lynn Haven, Youngstown
Baker	Macclenny, Glen Saint Mary
Bradford	Starke, Brooker, Hampton
Brevard	Cocoa, Cocoa Beach, Merritt Island, Titusville, Melbourne, Palm Bay, Cape Canaveral, Satellite Beach, Rockledge, Barefoot Bay, Indialantic, Malabar
Broward	Ft. Lauderdale, Davie, Sunrise, Weston, Coral Springs, Pompano Beach, Hollywood, Hallendale, Plantation, Dania Beach, Coconut Creek, Deerfield Beach, Lauderhill, Lighthouse Point, Margate, Miramar, Oakland Park, Pembroke Pines, Tamarac, Wilton Manors, Hillsboro Beach, Pembroke Park, Cooper City, Port Everglades, Sea Ranch Lakes, Southwest Ranches
Calhoun	Blountstown
Charlotte	Punta Gorda, Charlotte, Port Charlotte, Palm Island
Citrus	Crystal River, Homosassa Springs, Inverness
Clay	Orange Park, Middleburg, Green Cove Springs, Keystone Heights, Penny Farms
Collier	Naples, Marco Island, Everglades City, Golden Gate, Immokalee, Palm River Estates, Ochopee
Columbia	Lake City, Fort White
DeSoto	Arcadia, Brownville, Fort Ogden, Hull, Pine Level, Platt
Dixie	Cross City, Horseshoe Beach, Old Town
Duval	Jacksonville, Jacksonville Beach, Atlantic Beach, Neptune Beach
Escambia	Pensacola
Flagler	Palm Coast, Flagler Beach, Bunnell, Beverly Beach, Marineland
Franklin	Apalachicola
Gadsden	Quincy, Chattahoochee
Gilchrest	Trenton
Glades	Moorehaven
Gulf	Port St. Joe, Wewahitchka
Hamilton	Jasper, White Springs
Hardee	Wauchula
Hendry	Clewiston, LaBelle
Hernando	Brooksville, Weeki Wachi
Highlands	Avon Park, Sebring, Lake Placid, Leisure Lakes
Hillsborough	Tampa, Plant City, Temple Terrace, Apollo Beach, Brandon, Lutz, Ruskin, Sun City Center, Riverview, Dover, Thonotosassa, Ybor City
Holmes	Bonifay
Indian River	Vero Beach, Indian River Shores, Fellsmere, Sebastian
Jackson	Marianna
Jefferson	Monticello
Lafayette	Mayo
Lake	Altoona, Clermont, Eustis, Fruitland Park, Lady lake, Leesburg, Minneola, Mount Dora, Tavares, Umatilla
Lee County	Fort Myers, Bonita Springs, Cape Coral, Fort Myers Beach, Sanibel, Boca Grande, Estero, San Carlos Park, Lehigh Acres, Waterway Estates
Leon	Tallahassee
Levy	Bronson, Cedar Key, Chiefland, Williston, Yankeetown
Liberty	Bristol
Madison	Madison
Manatee	Bradenton, Anna Maria Island, Bradenton, Holmes Beach, Longboat Key, Palmetto, Myakka City
Marion	Ocala, Leesburg, Belleview, Citra, Dunnellon, Salt Springs, Weirsdale
Martin	Stuart, Sewall’s Point, Hobe Sound, Jensen Beach, Jupiter Island, Ocean Breeze Park, Palm City
Miami-Dade	Miami, Coral Gables, Coconut Grove, South Miami, Kendall, Homestead, North Miami, North Miami Beach, Miami Beach, Hialeah, Miami Shores, Miami Lakes, Aventura, Bal Harbour, Bay Harbor Islands, Hialeah Gardens, Key Biscayne, Pinecrest, Surfside, Cutler Bay, Doral, Golden Beach, Indian Village, Islandia, Medley, Miami Gardens, North Bay Village, Sunny Isles Beach, Sweetwater, Virginia Gardens, Florida City, Goulds, Biscayne Park
Monroe	Key West, Islamorada, Key Largo, Marathon, Big Pine Key, Key Colony Beach, Sugarloaf Key, Tavernier
Nassau	Fernandina Beach, Amelia Island, Hilliard, Yulee, Callahan
Okaloosa	Fort Walton Beach, Niceville, Cinco Bayou, Destin, Shalimar Valparaiso
Okeechobee	Okeechobee
Orange	Orlando, Lake Buena Vista, Apopka, Edgewood, Maitland, Ocoee, Windemere, Winter Garden, Winter Park, Zellwood
Osceola	Kissimmee, St. Cloud, Celebration
Palm Beach	Palm Beach, West Palm Beach, North Palm Beach, Lake Worth, Boca Raton, Delray Beach, Boynton Beach, Greenacres, Highland Beach, Hypoluxo, Juno Beach, Jupiter, Lake Park, Lantana, Ocean Ridge, Palm Beach Gardens, Royal Palm Beach, Wellington, Pahokee, Tequesta, Riviera Beach, Loxahatchee, Manalapan, Ocean Ridge, Glen Ridge
Pasco	New Port Richey, Bayonet Point, Gulf Harbors, Dade City, Holiday, Hudson, Land O’Lakes, Odessa, St. Leo, Zephyrhills
Pinellas	St. Petersburg, Clearwater, Dunedin, Gulfport, Largo, Oldsmar, Pinellas Park, Safety Harbor, Tarpon Springs, Treasure Island, Belleair, Madeira Beach, North Redington Beach, Seminole, Indian Rocks Beach
Polk	Lakeland, Auburndale. Bartow, Eagle Lake, Fort Meade, Haines City, Lake Alfred, Lake Wales, Winter Haven, Frostproof, Polk City, Highland Park, Indian Lake Estates
Putnam	Palatka, Interlachen
Santa Rosa	Gulf Breeze, Milton
Sarasota	Sarasota, Longboat Key, North Port, Venice
Seminole	Altamonte Springs, Casselberry, Lake Mary, Longwood, Oviedo, Sanford, Winter Springs
St. Johns	St. Augustine, St. Augustine Beach, Ponte Vedra Beach, Nocatee, Crescent City, Melrose, Pomona Park, Welaka
St. Lucie	Fort Pierce, Port St. Lucie
Sumter	Wildwood, Bushnell, The Villages
Suwannee	Live Oak
Taylor	Perry, Steinhatchee
Union	Lake Butler
Volusia	Daytona Beach, Ormond Beach, New Smyrna Beach, Deland, Deltona, Edgewater, Holly Hill, Ponce Inlet, Port Orange
Wakulla
Walton	DeFuniak Springs, Seaside
Washington	Chipley

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