Frequently asked questions:
If you have questions regarding a trust or if you are trying to deal with the Florida probate process, visit this page of our website to find the answers to frequently asked questions. Contact a Fort Myers probate lawyer today at the Linde Law Group to get your questions answered.
- Page 7
But the probate/trust attorney told me that I do not need my own attorney. Is that true?
We have seen some of the biggest problems develop from this simple question. The context of this question is that you are a beneficiary of a trust or estate. You called the attorney to ask him/her some questions, and the paralegal or secretary told you that your own attorney would just increase the cost. It is possible that could be true, but remember that the trust/estate attorney does not represent you. The trust/estate attorney represents the personal representative/trustee. If the attorney is knowledgeable, then that attorney will know that there is case law that suggests that the attorney has a fiduciary duty to the beneficiaries as well as the personal representative or trustee. But often what happens is that the attorney for the personal representative/trustee is not that knowledgeable, and that attorney who purportedly represents the personal representative/trustee ends up acting as the representative for the personal representative/trustee in their individual capacity. This can result in the attorney taking positions that are directly adverse to your interests. You will now know when this happens unless you have your own advocate. You should never sign something if you do not understand what you are signing and the larger the estate/trust the more important it is that you have someone that can advise you whether the estate/trust is being administered correctly. We have seen beneficiaries lose millions of dollars because the beneficiaries trusted the attorney for the estate/trust and signed a document waiving important rights or failed to assert claims in a timely manner.
My mom died in Fort Myers, can I contest the will my mom executed just before she died?
A “will contest” is generally a proceeding under Chapter 733 of the Florida probate code to have all or part of a will that has been sent to the court for a probate declared void. For example, assume that Jane has two siblings: Mean and Greedy. Mean and Greedy were able to have mom change her will just before she died leaving all of her probate estate to Mean and Greedy and cutting out Jane except for a gift of $1,000.00 out of a two million ($2,000,000.00) dollar estate. Mean and Greedy file a petition to have the will admitted. Because the purported will names Mean and Greedy as the personal representatives, Mean and Greedy do not have to send the petition for probate to Jane before sending it to the court. If the will was signed by mom, two witnesses, and if the will has an attestation clause, then the probate court will admit the will to probate usually after requesting a bond, but without noticing Jane. Once the will is admitted, Mean and Greedy are required to send a Notice of Administration to (1) the surviving spouse if there is one, (2) beneficiaries, (3) the trustee of a revocable trust, (4) individuals entitled to exempt property. Once Jane receives the Notice of Administration, Jane has three months to object to the validity of the will, the qualifications of the personal representative, the venue, or the jurisdiction of the court. If Jane did not receive a Notice of Administration, then other limitations apply.