The Role Of A Probate Attorney In Contesting A Will

Contesting a will can be a long, complicated, and sometimes expensive process — not to mention that it can be emotionally exhausting for all parties involved. Whether you are a Personal Representative of a deceased estate or a family member who believes that your loved one was unduly influenced in executing their will, having an outstanding probate attorney is crucial to your case. To appreciate why the expertise of a probate attorney is so important, it’s necessary to first unpack the basics of the probate process.

What Is Probate?

Under Florida law, if a person owns any assets in their own name at the time of their passing, a probate process will need to be completed for their assets to be distributed to their beneficiaries. When a person dies with a will, then probate involves both the verification of the will and the distribution of the deceased’s assets in terms of the will. During probate, the validity of the deceased’s will may be challenged in probate court. This is called a “contested probate.” While the services of a probate attorney are usually necessary even for uncontested probate proceedings, they are critical for contested probate.

“Probate” refers to the legal process of managing and distributing a deceased individual’s assets. It involves reviewing the estate and determining the rightful beneficiaries who inherit those assets. While probate typically focuses on validating a will, it can also proceed without a will.

The probate process is essential for several reasons:

• Determining the authenticity and validity of a will, if one exists.
• Identifying and valuing the deceased’s assets, such as money, property, and belongings.
• Ensuring that any debts or taxes are paid.
• Distributing the remaining assets to the designated inheritors.

In cases where no will exists, the court follows state statutes to decide how the assets are distributed.

Testate and Intestate Probate

In the case of testate probate, the decedent’s will must first be verified before their assets can be identified and distributed (following the settling of any estate liabilities and creditor’s claims). In intestate probate, the decedent’s assets are distributed in accordance with Florida intestate succession law after any claims and liabilities have been settled.

In both types of probate, a judge supervises the process. Legal issues can crop up at any point during probate proceedings, so it’s important to obtain sound legal advice if you are a Personal Representative dealing with a complex deceased estate.

The Role of the Personal Representative

In Florida, every probate process is managed by the Personal Representative (or ‘executor’) of the decedent’s estate. The Personal Representative is nominated in the decedent’s will. If the decedent died without a will, then the court will appoint a Personal Representative to manage the probate of the estate. Florida law requires that every Personal Representative be represented by a probate lawyer, unless (i) they are themselves a lawyer, or (ii) they are the ‘sole interested person’ in the proceedings i.e. the only beneficiary of the estate.

An executor is the person appointed by the deceased person to distribute their estate’s assets and manage the probate process. The attorney helps the executor understand the duties associated with their role and guides them on the legal procedures to follow. Here is a list of what a legal professional does for the executor:

• Review the will and other estate planning documents to interpret their meanings and validate their credibility.
• Locate and value estate assets by contacting appraisers, banks, or other professionals.
• Pay off any outstanding debts and taxes using the estate funds.
• File probate court paperwork correctly and on time.
• Deal with beneficiaries and creditors by answering all their questions on the inheritance process.
• Represent the executor if there are any disagreements among the beneficiaries.

On What Grounds Can a Will Be Challenged?

There are three general grounds upon which a will can be contested. The first is improper execution. Under Florida Statute 732.502, a will must be executed in a particular way: there are special requirements relating to how the will must be signed and witnessed. If the will is not executed according to these special requirements, it may be set aside as invalid. The second ground is incapacity: if the testator was not of sound mind when they executed the will, the will may be challenged on this basis. The third ground is undue influence. If a family member or other interested person unduly influenced or coerced the testator into changing their will or including certain bequests in their will, the will may be set aside.

A will does need to meet specific requirements for it to be legally valid. These requirements include things such as:

• The person who is making the will must be at least 18 years old and of sound mind. This means that you cannot have a minor create a will and that the person creating the will can make reasonable judgments and understand the consequences of their decisions.
• The will must be in writing and signed by the person who is writing the will.
• Two witnesses must sign the will in the presence of the person writing the will and each other.

If any of these requirements are not met, the will could be declared invalid, meaning the estate would be distributed according to Florida’s intestacy laws rather than the deceased’s wishes. This can result in unintended heirs receiving assets, disputes among family members, and unnecessary court involvement.

Further legal disputes can arise in relation to the interpretation of the will if it is ambiguously worded, or if the beneficiaries are not properly named. In some cases, a complication arises because the provisions of the will cannot be executed due to a change in circumstances (e.g. a named beneficiary is now deceased, and it is unclear who should inherit in their stead).

When Is a Will Contested?

If you are considering contesting a will, it is vital you seek the legal advice of a probate attorney immediately, as you only have a limited period within which to challenge the will. Usually, a will can only be contested within the first 90 days after creditors and beneficiaries have been provided with notice that the deceased’s will has been filed. Once these 90 days have passed, the will can no longer be contested, except in cases involving unlawful activity (e.g. undue influence).

If a will is challenged on any of the above grounds, the person who brings the challenge will need to adduce sufficient evidence to prove their case. Each ground requires certain facts to be proved. For example, in relation to capacity, it must be shown that the testator lacked the capacity to such an extent that they did not know what they were doing when they executed the will and that they lacked awareness of their assets and their family.

There are certain standards of proof that need to be met for a will to be declared invalid. This is where the skills of a good probate attorney are invaluable. They will assess the merits of your case and provide you with a preliminary assessment of whether there are grounds to challenge the will. They will also consider whether you have ‘standing’ to challenge the will, as only certain persons are permitted to contest a will. Generally, these are the Personal Representative and the parties who would have automatically inherited from the deceased had they died without a will e.g. the deceased’s spouse or children.

Common Causes of Family Disputes During Probate

In the heightened emotions following a family member’s death, minor disagreements can quickly escalate into tense disputes that create deep rifts within the family. Often, these conflicts arise from issues that might otherwise be easily resolved or overlooked. Unfortunately, discussions about the will or estate plan (or the absence of one) are frequently at the heart of these disagreements.

Some common causes of family disputes during the probate process include the following.

Absence of a Will

The absence of a valid will or estate plan leaves no clear legal instructions for handling the estate, often leading to disagreements among heirs. Without guidance, confusion and conflict can quickly arise.

Unexpected Distribution of Assets

An unequal or unexpected distribution of assets can leave heirs feeling overlooked, hurt, or suspicious. Sometimes, they may question whether the will was drafted under pressure, undue influence, or other extenuating circumstances, leading to mistrust and potential legal challenges.

Long-Standing Rivalry

Long-standing rivalries between family members can resurface during inheritance, turning legal discussions into emotionally-charged conflicts. These disagreements are often rooted in personal histories, making resolution even more challenging without outside support.

Suspicion of Manipulation

Suspicion of undue influence or fraud can create significant tension, especially if family members believe a caregiver, new spouse, or close friend manipulated the deceased’s final wishes. This is often the case when an heir’s expectations mis-align with the deceased’s final wishes.

Mismanagement by Executor

Mismanagement by executors or trustees can lead to disputes, particularly when assets are mishandled or communication with beneficiaries is poor. A lack of transparency or accountability often fuels mistrust and conflict.

Disagreements on Property and Asset Valuation

Disagreements over property value or how assets should be handled can create significant tension among family members. For instance, while some may wish to keep a family home for sentimental reasons, others may prefer to sell it and divide the proceeds, leading to emotional and financial conflict.

Omission of a Loved One

Challenging the validity of a will, especially when a family member has been unexpectedly omitted, can lead to litigation and significantly delay the probate process, which can intensify emotional strain and prolong family disputes.

What Challenges Can Arise During Probate?

There are various setbacks that can arise during probate proceedings. For this reason, many people choose to consult with an estate planning attorney so that they can ensure their estate avoids probate.

If your loved one has died and you suspect that one or more of the issues described below might arise during probate, it is crucial that you contact an experienced probate lawyer as soon as possible to begin preparing for whatever litigation may follow.

Disagreements Between Family Members and Beneficiaries

Family members who have been disinherited often contest probate proceedings, resulting in lengthy court battles and expensive legal fees. Family members may also disagree about what to do with the deceased’s house — some may wish for it to be sold and the proceeds distributed among the beneficiaries, whereas others may wish for the home to be kept in the family and passed on to future generations. When the deceased is divorced and remarried with children and step-children, this can also lead to conflict over who inherits what.

The Personal Representative Refuses Appointment or Breaches Fiduciary Duties

If the person who has been nominated as the Personal Representative in the will declines their appointment, this can complicate matters, as the court will need to appoint a replacement. Further issues can arise when a family member objects to the appointment of the Personal Representative (e.g. on grounds that they are unfit for the position) or accuses the Personal Representative of breaching their fiduciary duties.

Guardians, trustees, conservators or executors have the fiduciary duty to conduct themselves in the best interests of the person they’re appointed to protect or an estate. A breach of this duty includes intentionally harmful or self-dealing acts that can lead to litigation.

Disputes Brought by Creditors

In some cases, legal claims are brought by creditors of the deceased estate. This may result in a dispute if the Personal Representative denies that the decedent was indebted to the creditor and refuses to pay out the claim. If a creditor holds a mortgage over the deceased’s home and attempts to foreclose on the property, this may also cause complications, particularly where a surviving spouse is involved.

The Decedent Held Assets in Multiple States

If the decedent was a wealthy individual, they may have held property in multiple states. This is especially common for wealthy retirees from northern states who own property in Florida and move south during the winter months. Where the decedent owned property in more than one state, their estate will need to be probated in each state where this property is located. Probate will begin in their state of domicile, and then further probate proceedings will commence in other states. This is a very complicated process, and the assistance of a highly skilled probate lawyer will be necessary.

Trust Disputes, Guardianship, and Conservatorship

Legal contests filed in a probate court after losing a loved one are categorized as probate litigation. Beyond will contests, these disputes can include:

• Trust Disputes: These disputes arise when a severe breach of trust happens, such as mismanagement or embezzlement by a trustee, concerns about the trustee’s actions and interpretation of trust terms, issues on the trust’s validity, or disagreements on beneficiary entitlements. It is crucial to seek legal advice from reputable attorneys when these disputes arise. They help you resolve issues when mediation and negotiation fail to work. Litigation protects the interests of the trust and its beneficiaries.
• Guardianship and Conservatorship: This refers to a relationship established by a court between a minor or incapacitated adult and a competent adult given the responsibility to care for them or their property. A guardian looks after the person, while a conservator looks after the property. Consulting a probate attorney helps avoid disputes that may arise during the process. They guide you through and ensure you follow the law’s provisions.

Common Mistakes to Avoid During Probate

Even minor mistakes can cause significant delays, legal disputes, and financial losses. This is where a probate law firm becomes invaluable. They can provide invaluable guidance throughout the probate process ensuring that the estate is administered correctly and in compliance with state law.

Some individuals may attempt to handle probate without legal assistance, thinking they can save money. However, DIY probate often leads to costly mistakes, delays, and unnecessary stress. Florida probate laws are intricate and constantly evolving. A mistake in paperwork or missing a deadline can cause delays or legal consequences. Personal representatives are responsible for properly managing the estate, and if an error occurs — such as failing to pay taxes or mishandling creditor claims — the representative may be held personally liable.

Below, we explore some of the most common mistakes people make and how an experienced probate attorney can help you avoid them.

1. Failing to Properly Draft a Will

A poorly drafted will — or worse, not having one at all — can lead to serious probate complications. A probate attorney ensures a will is properly drafted, executed, and updated as needed to reflect changes in family structure, financial status, and legal requirements.

2. Not Understanding Florida’s Homestead Laws

Florida has strong homestead protections that can impact probate.

The state’s homestead laws:

• Shield a primary residence from most creditors.
• Restrict how a homestead property can be transferred upon death.
• Provide tax benefits to surviving spouses and minor children.

Many personal representatives and heirs misunderstand these laws, leading to incorrect transfers, unexpected creditor claims, or costly legal disputes. For example, if a married person tries to leave their homestead to someone other than their spouse, Florida law may override their will.

3. Overlooking Creditor Claims

When someone passes away, their debts don’t disappear.

State law requires personal representatives to:

• Notify known and potential creditors.
• Allow creditors to file claims against the estate within a specific timeframe.
• Properly evaluate and settle valid debts before distributing assets to heirs.

Failing to follow these steps can result in legal actions against the estate, delays in closing probate, and even personal liability for the personal representative. Your attorney will ensure that creditor claims are handled correctly, preventing unnecessary complications.

4. Mishandling the Process

Probate involves numerous legal procedures, deadlines, and filings.

Common mistakes personal representatives make include:

• Failing to file probate documents with the court in a timely manner.
• Mismanaging estate assets or failing to account for them.
• Distributing assets before all debts and taxes are paid.

These errors can lead to court intervention, penalties, and increased legal costs. Probate attorneys handle all aspects of the process efficiently, ensuring compliance with Florida law and avoiding costly missteps.

5. Not Considering Alternatives to Probate

Many people assume that all assets must go through probate, but this isn’t always the case. State law allows for probate alternatives that can save time and money, including:

• Living trusts — Assets placed in a trust can bypass probate entirely.
• Joint ownership — This is for property owned jointly with a spouse or someone else. In this instance rights of survivorship can automatically transfer to the surviving owner.
• Payable-on-death (POD) accounts — Bank accounts and retirement funds can be designated to a beneficiary outside of probate.

A probate lawyer can review an estate plan to determine whether probate can be avoided altogether or simplified through proper planning.

6. Family Disputes and Litigation

Probate often brings out deep-seated family tensions, leading to conflicts over inheritance, asset distribution, or personal representative decisions. Without legal guidance, these disputes can escalate into costly and time-consuming litigation. A probate attorney can mediate conflicts, ensure the process is handled fairly, and, if necessary, represent clients in court to protect their interests.

7. Improper Estate Tax and Financial Planning

Although Florida does not impose a state estate tax, federal estate taxes may still apply to large estates. Additionally, financial mismanagement during probate — such as failing to properly value assets or miscalculating tax obligations — can result in significant financial losses.

A probate law firm can help minimize tax liabilities, ensure proper financial management of the estate, and prevent unnecessary losses.

The Vital Role of a Probate Attorney

Having excellent legal representation is key to every stage of contested probate. Your probate attorney will prepare the necessary evidence to demonstrate that you have established a ground for setting aside the will. They will also prepare legal arguments to support the evidence and persuade the court that the threshold of proof has been met.

A good attorney will also pre-empt the questions and counter-arguments likely to be presented by the opposing party who is arguing that the will is valid (this may be the Personal Representative or another beneficiary).

Probate law is very complex, and your attorney should have a deep and up-to-date knowledge of all of the legal procedures and requirements.

Your attorney will play an important role in any mediation, negotiation, or settlement process. Often, contested probate cases do not go to trial, and the parties reach a settlement of all claims before pursuing formal litigation. A skilled lawyer will be a firm but reasonable negotiator and will ensure that your best interests are always represented.

Whether you are the Personal Representative of your loved one’s estate, a family member contesting a will, or a beneficiary seeking to defend against probate challenges, it is critical that you obtain the services of an esteemed probate lawyer. They will be intimately familiar with the law that governs probate disputes and the court procedures that must be followed during contested probate proceedings. Probate lawyers have an in-depth understanding of the Florida probate court system, and will devise a legal strategy that aims to resolve any disputes quickly and efficiently.

Probate attorneys will advise you on the evidence that needs to be collated and presented in court, and will craft a well-researched and persuasive legal argument to give your case the best prospects of success. Probate litigation is a drawn-out and expensive process, and can result in the proceeds of the decedent’s estate only being paid out years after their passing. In some cases, probate lawyers may be able to persuade family members to attend mediation so that a settlement can be reached and lengthy probate litigation avoided.

How a Probate Attorney Helps Prevent Conflict

A probate attorney supports the entire probate process, from planning during a person’s lifetime to guiding loved ones after their passing. With experienced legal guidance, the process can be simplified, conflicts minimized, and estate administration handled smoothly to help prevent family disputes.

Avoiding Probate by Solidifying Estate Planning Documents

Preparation is key when it comes to estate planning, preventing common legal disputes down the line. A probate lawyer helps by drafting a clear and legally sound will that reflects the individual’s wishes. They can also help establish trusts to manage and distribute assets in a way that bypasses probate and reduces disputes. Additionally, they can designate key roles, such as Executors and Trustees, to avoid confusion down the line and ensure that updates are made regularly based on major life events, such as divorce or marriage.

Interpreting and Validating Wills

One of the leading causes of family conflict is disagreement over the interpretation of a will or suspicion of manipulation. A probate attorney has the expertise to confirm the will’s legal validity, ensure it meets all legal requirements, and clarify any ambiguous language that could spark disputes. They also address claims of undue influence or fraud, resolve concerns about omitted heirs, and support the executor in carrying out the will’s instructions fairly and accurately.

Ensuring Proper (and Legal) Distribution of Assets

A will must be legally sound; otherwise, assets will be distributed according to state laws. A probate attorney understands these laws and can assist with inventorying and valuing assets in accordance with the relevant documents. Before any distribution can occur, all debts and taxes must be paid (a process where the guidance of a probate attorney is especially valuable). Additionally, attorneys help prevent mismanagement by ensuring that the executor and trustee carry out their responsibilities properly and efficiently.

Acting as a Neutral Third Party

The role of a probate attorney extends beyond legal and financial expertise. They also serve as a neutral third party who helps reduce emotional tension, mediate disagreements, and promote transparency among family members. By offering objective support, the attorney can shield the executor from family pressure and ensure that decisions are based on legal facts rather than personal bias. As a neutral presence in the probate process, the attorney helps facilitate constructive discussions and resolve conflicts without taking sides.

A Probate Attorney You Can Trust

Selecting the right attorney makes all the difference in protecting your assets and securing your legacy. Highly experienced professionals have extensive knowledge of navigating complexities in the legal field. In addition to the years of practice, consider their area of expertise — probate lawyers have a clear understanding of the procedures involved and are updated on advancements and changes in this field.

At The Law Offices of Gary I. Handin, P.A., we have decades of experience in the field of probate law and have represented numerous clients in contested probate proceedings. Our extensive experience allows us to provide exceptional legal representation for both contested and uncontested probate.

At Handin Law, we take the legal burden off your shoulders so you can focus on healing and supporting your loved ones. With deep legal knowledge, we guide families through every step of the probate process. Our team is also well-versed in serving as a neutral third party, helping to ease emotional tension and provide trusted support during a difficult time.

Whether you are considering contesting a will, need the services of a probate attorney for any other reason, would like us to draft your will or help you to create a testamentary trust, or need assistance with estate planning, don’t hesitate to contact us at 954-796-9600. You can also learn more about what an open estate involves or read our guide on questions to ask a probate attorney before your consultation.