When someone dies in Florida with assets titled in their own name (as opposed to assets held in trust, in joint tenancy with right of survivorship, in a tenants by the entirety, in a pay-on-death or transfer-on-death account) those assets generally cannot be transferred except through a probate proceeding. The court appoints a personal representative to take charge of the decedent's property. The personal representative has many different duties under Florida law. Thus, litigation can involve who is the personal representative. When a will has been properly executed with an attestation clause, then generally the court must appoint the person nominated in the will if they are otherwise qualified. However, if there is no will, then before a person can be appointed personal representative; all individuals with an equal right to be appointed must be noticed of the proceeding by certified mail (commonly referred to as “formal notice”).
Even if a will is properly executed, a beneficiary under the will can challenge the will within three months after that person has received a notice of administration from the personal representative. Will challenges can involve, mistake (although not mistake of the inducement), insane delusion, undue influence or lack of capacity.
A properly executed will can be ambiguous if the will was not written very well. There can be latent ambiguities or patent ambiguities. Thus, litigation can involve a proceeding to interpret that meaning of a phrase in a will.
One of the first tasks of a personal representative is to inventory the assets of the estate. Once this is done, the personal representative files an inventory with the court and serves the inventory on the beneficiaries. If the beneficiaries disagree with the inventory, then litigation can result from objections to the inventory. Sometimes there are claims that before the person died, that person was manipulated by someone determined to steal money. This happens a lot in Florida.
Once a personal representative has been appointed, the personal representative must send out a notice to creditors. The notice to creditors is published and creditors have ninety days (90) days to file a creditor claim. If the creditor is “reasonably ascertainable” to the personal representative then the personal representative must send that creditor a notice and the creditor has the later of thirty (30) days from the notice or ninety (90) days from the original publication to file a claim. If the creditor files a claim, then the personal representative may object to the claim. If that happens, the creditor generally has thirty (30) days to file a lawsuit on the claim. Thus, litigation can involve creditor claims.
When the creditors have been paid, tax returns have been filed and the estate is ready to close, the personal representative must serve an accounting on all beneficiaries unless waived. Litigation can result from objections to the accounting if the personal representative wasted assets or paid attorney too much money et cetera.
These are just some examples of issues that can result in probate litigation. Please contact Linde Law Group today to answer any questions that you have. For more information contact Florida Bar Board Certified wills, trusts and estates expert Matthew A. Linde at 239.939.7100 or 844.357.0572 today!