If you have a loved one who has recently passed away, you want to make sure that your loved one’s wishes are followed properly in the Florida probate administration. Unfortunately, this is not always the case. Sometimes, a loved one may have been taken advantage of before his or her death. Your loved one may have been improperly persuaded to change his or her will to give all of his or her assets to a particular person, even though your loved one intended to give their assets to all of his or her children. If this is the case, you may have a claim to contest the will that is admitted to the Florida probate case. This blog post will provide a brief overview of will contests in Florida probate cases.
In Florida, there are several situations where a will can be contested in a probate administration. First, there could be a case of undue influence that was exerted on the testator (person who drafted the will) by another person. The testator may not have had testimentary capacity when he or she drafted the new will that is now being admitted to probate. Testimentary capacity is the legal term for the mental ability of a testator to make important decisions about his or her assets and how to devise them. Testamentary capacity includes the testator’s understanding of what they own, and knowing the details of their familial relationships. The will may have been improperly executed, or it may have been forged. Finally, a will contest may occur if there is another will that was executed after the will that was admitted to probate. Each of these issues can be detailed and we’ll look at them in future blog posts.
Will contests in Florida are governed by section 733.109, Florida Statutes. Under section 733.109, Florida Statutes, a will contest is called a “revocation of probate” because essentially a will contest is taking the position that probate should not proceed under the admitted will. Section 733.109(1), Florida Statutes states that the proceeding to revoke probate (or will contest) should be brought in the probate administration and “Any interested person, including a beneficiary under a prior will, unless barred by s. 733.212 or s. 733.2123, may commence the proceeding before final discharge of the personal representative.”
Furthermore, under section 733.109(2), Florida Statutes, “no distribution may be made to beneficiaries in contravention of the rights who, but for the will, would be entitled to the property disposed of.”
Section 733.109, Florida Statutes make two important statements. First, you need to bring your will contest in the same court that is handling the Florida probate administration. Second, the statute restricts the ability for the personal representative and probate court to make distributions that are at issue in the will contest proceeding. Therefore, if the decedent’s (the person who died) house was supposed to go to the decedent’s nurse in the latest will, but before was supposed to be distributed to the decedent’s children, the probate court cannot allow for the house to be distributed to anyone until the will contest is decided. However, if there is property that is not disputed in the will contest, then the probate may still order the distribution of that property. This can be extremely important in preserving assets on which payments are still owed, and the asset may be lost if the account is not kept current.
If you think that you may have a claim to contest a will, you need to talk to a Florida probate attorney right away. The sooner you take action the better. This is because it is more difficult to take property back if it is distributed out of the probate estate. If you can move with a will contest while the probate case is pending and the property is still part of the probate estate, your likelihood of recovering the property if you are successful with your claims is much higher. Therefore, the sooner that you move with a Florida will contest, the better.
If you have a probate question or think that you may have a claim for a will contest in a Florida probate administration already pending, contact one of our Florida probate attorneys today to schedule a free consultation. Also, if you would like more information about undue influence claims, see our blog post. At our consultation, we can review your potential claims and answer any questions you may have about bringing a will contest or otherwise challenging a Florida probate administration.
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