Is the procedure the same for challenging a will or a trust?

There are some important differences when challenging a will or a trust. First, for a will to be valid you must have an original will and that will must be deposited with the court before the will can be admitted to probate.  If you do not have the will, then absent a procedure to prove a lost will, the decedent is presumed to have destroyed a will in his or her possession, and the decedent will be deemed to have died without a will.  If you are contesting a will, you cannot have a jury trial and the contest is done in front of a probate judge.

To challenge a trust you must file a complaint in the civil division of the circuit court and you proceed under the rules of civil procedure. This means you must obtain a summons and serve the defendant(s).  Further, losing the original trust does not imply the trust was revoked.  

If you have to challenge a will and a trust signed at the same time, be careful that the will does not have a provision that reconstitutes the trust.  We have seen lawsuits seeking to challenge the validity of a trust when the plaintiff fails to challenge a will in a timely.  If the will is then deemed valid and the will reconstitutes the trust, the trust challenge will be over before any evidence was obtained.  Probate litigation and trust litigation are complicated and your chances of success will be improved by having an expert in wills, trusts and estates to guide you.  For more information contact Florida Bar Board Certified Wills, Trusts and Estates attorney Matthew A. Linde today at 239.939.7100.

Matthew A. Linde
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