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Miami Estate and Probate Litigation Attorney

Serving Miami-Dade County and the Surrounding Areas

Miami is the second largest city in Florida and the county seat of the most populous county in the state. Nearly all of those residents will be impacted by estate planning and probate issues at some point. Yet, data suggests that many are unprotected when it comes to important issues like passing property to loved ones after their deaths, ensuring that their medical wishes are carried out, and otherwise putting important decisions in the hands of trusted people. 

Estate Planning and Preparation in Miami

A recent survey highlights a trend that may be hitting Miami hard. While older people have traditionally been more inclined to have wills and other estate planning documents, the 2020 data shows a reversal. 26.8% of those aged 18-34 reported having estate planning documents, compared with just 22.5% of those aged 35-54. That’s a big shift: in the prior two years, the older group was significantly more likely to have wills and other estate planning documents than the younger group. 

The median age in Miami-Dade County—about 40—is a bit higher than the national average, and lands squarely in the group that’s trending downward in terms of estate planning. The average age in the city of Miami is very close to the median for the county, but in some areas it’s considerably higher. For instance, both Bal Harbour and Aventura have median ages greater than 50.

The trend for older Americans is troubling, too. Just two years ago, 60% of survey respondents aged 55 and older said they had estate planning documents. But, in 2021, that percentage had dropped to 44%. Though middle-age and older Americans seem to be increasingly neglecting estate planning, it’s just as important as ever. 

Risks of Neglecting Estate Planning

When a Florida resident dies without a will, living trust, or other provision for passing property, distribution of his or her assets is subject to Florida’s law of intestate succession. That’s a state statute that dictates who gets the deceased’s property. In some cases, intestate succession gets it right, and property passes to the person or people you would have chosen. But, not always. And, intestate succession may not play out the way you’d expect. 

But, that’s not the only downside to neglecting estate planning. Working with an experienced Miami probate and estate planning attorney can help ensure that:

  • Your property is distributed according to your wishes
  • Someone you trust is responsible for administering your estate
  • A trusted person has the authority to pay your bills and otherwise manage your finances and property if you are unable
  • You get to name the person who will care for your children if you are incapacitated
  • Your medical providers know your wishes regarding end of life issues
  • Someone who understands your priorities and will respect your wishes gets to make specific medical decisions

Estate planning can also significantly reduce stress on your family and conflict among your loved ones. And, unresolved matters may cost your estate money, meaning less is left for the people you want to provide for. 

Miami Probate Litigation

The Miami-Dade Probate Court is located in the Miami-Dade County Courthouse at 73 W. Flagler Street in Miami. In the 2019-20 fiscal year, the court processed 6,590 probate cases. Most of these cases don’t involve probate litigation. But, occasionally, probate litigation is necessary. 

Will Contests

A will contest is one of the most common and best-known types of probate litigation. A will contest is filed when a beneficiary or other interested party believes that the will isn’t valid for some reason. Some possible claims include: 

  • The will wasn’t properly executed (for instance, was unsigned or wasn’t properly witnessed)
  • The will has been revoked, possibly through the creation of a newer valid will
  • The will is forged 
  • The will was signed under duress, or the testator was tricked into signing the will
  • A beneficiary exerted undue influence over the testator

Anyone considering a Miami will contest or other Miami-Dade County probate litigation should speak with a Miami probate lawyer as soon as possible. Strict deadlines apply. And, it’s important to get advice from a knowledgeable professional like a probate attorney before taking any action. Will contests and other estate litigation can be complex and expensive, and you’ll want to make an educated decision about the pros and cons of initiating litigation.

Actions against the Personal Representative

Beneficiaries are often dissatisfied with the performance of the personal representative of a Miami estate. Sometimes, that frustration stems from a lack of knowledge of the process. The length of time it takes to administer an estate, make distributions, and close the estate varies depending on a variety of factors. But, even a simple estate will typically take five to six months to administer, and more complex estates can take much longer. 

In other cases, the personal representative could be doing a better job. But, that’s typically not sufficient to support probate litigation. The personal representative has certain statutory duties he or she must fulfill, but is not expected to be an expert in taxation, sale of property, or other specific aspects of the process. That’s one reason Florida law requires most personal representatives to be represented by an attorney. Though the law doesn’t specify, the attorney will typically be guiding an inexperienced person through a very technical process that includes:

  • Serving notice on interested parties
  • Taking inventory of the estate
  • Maintaining assets of the estate
  • Identifying creditors and paying legitimate debts of the estate
  • Filing tax returns as necessary
  • Paying any taxes 
  • Liquidating estate assets as needed to pay debts or distribute assets
  • Distributing assets to beneficiaries
  • Preparing an accounting

So, it’s best to work with an elder law attorney who has experience with probate and estates. Ensuring that you have the right representation can help avoid probate litigation based on performance of the personal representative. 

In some cases, though, the personal representative’s actions may merit litigation. For example, if the personal representative is self-dealing, putting his or her interests above those of the beneficiaries, or simply failing or refusing to do the job, action may be warranted. 

Spousal Elective Share

A surviving spouse in Florida is entitled to a certain minimum share of the estate. Asserting this right isn’t strictly probate litigation: the right is statutory. However, calculating the spousal elective share can be complicated, and litigation may arise regarding which property should be included in the calculation, how that property is valued, and other specifics. 

A surviving spouse who is considering electing against the will should consult a Miami probate lawyer before taking any action. While the 30% set forth in the statute may sound straightforward, the elective share considers property that may not be passing through the estate. That means, for instance, that a spouse who is receiving 25% under the will and also certain property outside the will may be receiving more than he or she would by electing the 30% share. 

An experienced estate lawyer can explain which property will be considered in each scenario and help determine the best approach for a surviving spouse.

Talk to a Miami Probate and Estate Attorney

Whether you’re just getting started on estate planning, are considering changes due to changes in your family structure, have been appointed personal representative of a deceased loved one’s estate, or are a beneficiary or surviving spouse considering probate litigation or electing against the will, your first step should be to educate yourself. 

A consultation with an experienced elder law and estate attorney like Thomas Upchurch is a great place to start. You can schedule yours right now by calling 386-320-6169. 

Probate, also called estate administration, is simply the process by which a deceased individual’s assets are transferred to that person’s heirs and beneficiaries. Florida law provides for two different types of probate: a formal administration and a summary administration. Summary administration is an abbreviated version of formal administration, but it is only available in certain circumstances. Most estates will go through the formal administration process, which entails:
  1. The administration of a personal representative
  2. Taking inventory of the deceased individual’s assets, including real estate,
  3. personal property, bank accounts, and investments
  4. Providing notice to creditors and beneficiaries
  5. Managing litigation or legal issues related to the estate and its administration
  6. Filing taxes the estate may owe
  7. Distributing estate assets to the named beneficiaries
No. Typically, the majority of the deceased individual’s assets will need to go through probate, but there are a few assets that will avoid the probate process. These assets are ones that have named beneficiaries, like insurance policies or bank accounts, or property that has rights of survivorship explicitly details, such as a piece of real estate with a deed giving right of survivorship.
Personal representatives are required to provide the beneficiaries with relevant information related to the estate administration, such as regular accountings. You have a right to receive this information. If you are not receiving the information or if the information presents issues about the management of the estate administrations or of the estate assets, you should reach out to a probate attorney.
There are no statutory limits around when you have to start the probate process. That being said, it is easier to start as soon as possible. Once you have reached out to a probate attorney to start the administration process, the overall process typically takes 6 to 9 months. Smaller estates are usually on the shorter side, whereas larger, more complex estates can sometimes take 9 to 12 months.
In most cases, under Florida law, you will need a probate attorney to assist with your estate administration. Even if an attorney is not required, it is challenging to navigate the complex probate procedures and requirements. Errors in paperwork and missed deadlines only elongate and further complicate the probate process. An experienced probate attorney will ensure that your estate administration goes smoothly and will be there to answer any questions you have along the way. In addition, if you are a beneficiary who is concerned about the estate administration or the actions of the personal representative, you should reach out to a probate attorney who will represent your interests.

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