Contested Estates & Litigation
When our attorneys create an estate plan, we try to avoid any issues, conflicts, or delays in the administration of the estate. In some circumstances, however, particularly when the testator did not have legal counsel assist in the preparation of the testamentary documents, the testator’s wishes are not clear. This may create conflicts down the road. In other cases, an individual who believes that they deserved something from the testator, or who thinks that the testator was unduly influenced or exploited, can bring an action to contest the will and to challenge its provisions. At the Martin Law Firm, our Cape Coral and Fort Myers probate litigation lawyers have assisted many Southwest Florida residents with handling contested estates and litigation. We also have offices in Naples, Tampa, and Miami from which we can represent clients.Florida Procedures and Rules for Probate Litigation
In general, probate is the process by which a decedent’s testamentary wishes are carried out. There are two types of probate, including the shortened summary administration proceeding available to certain types of estates and formal administration, which is the primary method used. Whether there is a will or some other document, you may need to involve the probate court in receiving the legal authority to carry out the decedent’s wishes or ensuring that you are completing the process correctly.
The probate process involves a broad range of requirements, such as determining a personal representative, notifying creditors, collecting any outstanding debts owed to the decedent, and taking possession of the decedent’s assets and estate. During this process, interested parties can view the decedent’s will. In some instances, a viewing party may take issue with the will or with the way in which the personal representative is carrying out the decedent’s wishes. If this individual seeks to challenge the will, they may wish to retain a probate litigation attorney in Cape Coral or Fort Myers to initiate a proceeding to start a formal will contest. The lawsuit will involve the personal representative who is in charge of administering the estate and include allegations regarding the basis for the challenger’s contest.Grounds for Challenging a Will Under Florida Law
Florida recognizes three main ways of challenging a will. The first is called a mistake in execution. According to Florida Statutes Section 732.502, there are specific requirements that a testator must follow when creating a will, such as having two individuals witness their signature and having these individuals also sign the will. If the challenger believes that these procedures were not conducted properly and can prove that they were not followed, the will may be rendered invalid.
The next basis for challenging a will is called undue influence. In this instance, the challenger claims that someone took advantage of the testator and influenced them to make particular decisions about the disposition of their assets. This can involve coercion, duress, and attempts to ingratiate oneself to the testator for the purpose of gaining favor and alienating others.
Finally, the challenger can claim that the testator lacked the appropriate mental capacity to create a will. This is based on an assertion that the individual was unable to fully understand the value and extent of their possessions, that the testator’s loved ones and relatives ought to have been the rightful recipients of the property, and that the will does not dispose of the property in an expected way. The appropriate mental capacity required to make a will is not as high as general competency, and it can include dementia, Alzheimer’s, and other signs of aging or taking medications that impede one’s cognitive abilities.Get Advice from a Probate Litigation Lawyer in Cape Coral or Fort Myers
If you are involved in a probate dispute or believe that you need to challenge the administration of a will, the compassionate and family-focused attorneys at the Martin Law Firm are standing by to assist you. Our diligent team has provided counsel to families throughout Southwest Florida from our offices in Miami, Tampa, Naples, Cape Coral, and Fort Myers. We offer a free consultation to help you learn more about whether you have a legal cause of action or whether you may be facing liability. Call our Fort Myers and Cape Coral probate litigation attorneys now at (844) 465-4357 or contact us online to set up your appointment.