If you want to contest a will, how long do you have to bring the will contest in a Florida probate case? As usual with legal issues, the time period can vary based upon a variety of factors. Due to this time variation, it is important that you talk to an attorney as soon as possible after you decide that you may have a will contest action to bring in a Florida probate administration.
When can a will contest be brought?
There are two times when a Florida will can be contested: before or after the letters of administration are issued by the Florida probate court. The letters of administration are issued by a Florida probate court at the beginning of a probate case. The letters of administration name the person who is the personal representative for the probate administration among other things. The one time you cannot contest a will is before the death of the testator (the person who executed the will) under section 732.518, Florida Statutes. This makes sense because if the testator is alive, he or she can freely change a will, as long as they have testamentary capacity at the time they execute the new will or codicil.
Will contests brought before the letters of administration are issued.
A will contest typically occurs prior to the issuance of the letters of administration when a caveat is filed by an interested person prior to the time when the petition for probate administration is filed the the court. The party that filed the caveat can then challenge the admission of the will into probate through a will contest action prior to the issuance of the letters of administration.
Will contests brought after the letters of administration are issued.
Most often, a will contest will take place after the letters of administration are issued by the Florida probate court. In this case, the will can be contested by any interested party at any time prior to the discharge of the personal representative.
However, there is a big exception to that rule. If formal notice is served on an interested party, the time for a will contest by that party is limited to three months after the interested person’s receipt of the formal notice. We will review formal notice in a future blog post. Under section 733.212, Florida Statutes, a personal representative is required to “promptly serve a copy of the notice of administration” on the following people:
- The decedent’s (person who passed away) surviving spouse
- Beneficiaries under the will
- The trustee of a revocable trust executed by the decedent
- Any persons who may be entitled to exempt property
If a person is served with formal notice, then the person only has three months to challenge the will in the probate case. Under section 733.212(3), Florida Statutes, “Any interested person on whom a copy of the notice of administration is served must object to the validity of the will, the venue, or the jurisdiction of the court by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred (emphasis added).” Therefore, if you receive formal notice of a Florida probate case and you do not file your will contest within the three month period, your claim is forever barred.
The only way that the three month period can be extended under section 733.121(3), “for estoppel based upon a misstatement by the personal representative regarding the time period within which an objection must be filed.” Further, “The time period may not be extended for any other reason, including affirmative representation, failure to disclose information, or misconduct by the personal representative.” Therefore, the only way that the time period for a will contest can be enlarged is if the personal representative mistakenly includes the wrong time period on the formal notice that is served on the interested party. Therefore, you only have three months from your receipt of formal notice to contest the validity of the probated will.
The only time when section 733.212(3), Florida Statutes does not bar the filing of a later discovered will or codicil that revokes the probated will. These issues must be presented to the probate court before the estate is closed under section 733.208, Florida Statutes.
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As you can see, will contests must be brought within a specific period of time. Otherwise, your grounds to contest the will will be forever barred by the Florida law. If you think that you may be able to contest the probate of a will, you need to talk to an attorney right away. This is especially important if you have received formal notice of the Florida probate administration. Our attorneys are experienced in probate and estate litigation and can help you to determine whether you have a claim in a will contest proceeding. Contact us today to schedule a free consultation.