If you are an heir or named as a beneficiary in a will, you know that it was your loved one’s wishes to provide you with something upon their death. If you are a creditor in a probate administration, you want to make sure that you are paid if there are assets available to make payment. If you are the personal representative in a probate estate, you want to make sure that you are carrying out your duties as personal representative in compliance with the law and that you are administering the probate estate according to the wishes of the decedent. In all of these cases, there is a possibility that you may need to defend your rights, the rights of your loved one, the rights of the beneficiaries, or the rights of the probate estate. To take action, you need to make sure that you have an attorney that is experienced in litigating in probate cases.
A common issue faced by beneficiaries and heirs in a probate case is that a relatively new will is admitted to probate that may provide for all of the decedent’s assets to go to one person, often an heir or someone close to the decedent. This new will was unknown before the probate case and may have been executed soon before your loved one passed away. The distribution of assets under the new will is different than the proposed distribution that was set out in a previous will executed by your loved one or may be so out of line with your loved one’s wishes that it seems strange that the decedent would have gone forward with the distribution to that one particular person. In this case, your loved one may have been the victim of undue influence.
Florida courts have categorized undue influence as influence over a person’s will that “amounts to over persuasion, duress, force, coercion, of artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.” Raimi v. Furlong, 702 So. 2d 1273, 1286-1287 (Fla. 3d DCA 1997). The testator is the person who has executed the will. Therefore, undue influence occurs when a person somehow exerts such an amount of influence over a person to take away the testator’s free will and then manipulate the testator to do as the influencer desires. This is a common way that elderly people are persuaded by a certain person in their lives, usually someone close to them or in a position of trust, to make changes to their estate plan that may not be in their best interest or may be against their wishes. A will may be invalidated if it is proven that the will was procured by undue influence.
If you think that your loved one may have been the victim of undue influence, you need to consult with an attorney as soon as possible. If there is a probate case already established, it is important to bring the undue influence claim before the assets of the probate estate are distributed. Once the assets are distributed out of the estate, it will be more difficult to recover the assets, if they are able to be recovered at all. If you are a beneficiary or an heir to an estate and you are suspicious that undue influence has occurred, contact us today for a free 30 minute consultation. Our attorneys will be able to go over the facts of your case with you in order to determine if you have an actionable claim.
A problem for beneficiaries, heirs, and creditors of a probate estate is the mismanagement of estate assets by the personal representative. Probate estate assets can include cars, houses, property, investments, bank accounts, and equity in businesses. Other more exotic assets may also be included. It is the personal representative’s fiduciary duty to keep track of those assets and to handle them in a way that is best for the beneficiaries and creditors of the estate. If the personal representative is mishandling assets of the probate estate or is failing to take the required steps to protect assets of the probate estate, you may need to take action as a creditor or beneficiary to protect the estate assets. This may include filing a petition for removal of the personal representative, taking court action to protect assets, or even filing an adversary proceeding in the probate estate against the personal representative for breach of fiduciary duty.
If you are the personal representative for a probate administration, a situation may arise where you may need to defend your actions or the estate’s interests from actions brought by other people, like those described above. In this situation, you need to have a probate attorney that has probate litigation knowledge to provide you and the estate with the best defense possible. Additionally and importantly, if you believe that the probate estate may have a claim against outside parties, you may be able to bring that claim as the personal representative of the probate estate. Any of these instances may add complexity to the probate administration process and is why an experienced probate litigation attorney is required.
Our attorneys have experience with most types of probate litigation. Additionally, if you are named as a personal representative, you may want to hire an attorney that can also litigate claims the estate may have or defend against claims brought against the estate.
Contact us today to schedule a free 30 minute consultation. In the consultation, our attorneys will be able to review the facts involved with any potential claims you or the probate estate may have. We may also be able to assess the likelihood of claims being brought against the probate estate.