Tampa, St. Petersburg Probate and Elder Law Attorney

Serving the Greater Hillsborough and Pinellas County Area

If you’re like most Florida residents, chances are that you have only a very basic understanding of Florida estate law and the probate process. However, nearly every family will be affected by those laws and will in some way be involved in probate proceedings. It’s best for you and for your loved ones if you plan ahead.

Call 386-320-6169 for a consult.

What is Estate Planning?

Estate planning involves making advance decisions and executing legal documents to ensure that those decisions are carried out. Your will or living trust is one part of an estate plan, but a comprehensive estate plan includes much more. The core elements in a Florida estate plan generally include:

• A will or living trust (or both) to pass property to your loved ones, charities you want to support, and anyone else you choose after your passing
• An advance healthcare directive that lets your medical providers know how you want certain end-of-life issues handled
• The appointment of a healthcare proxy who will be able to make medical decisions for you if you are unable to do so yourself
• A financial power of attorney that will allow a trusted person to manage your property and financial affairs if you are unable to do so yourself

Depending on your circumstances, your estate plan may include other elements. For example:

• If you have minor children, nomination of a guardian to care for them if you pass away or become incapacitated before they reach the age of majority
• If you are concerned about access to long-term care, Medicaid planning to help ensure eligibility while minimizing depletion of your estate
• If you have a dependent or other loved one who is disabled and is or may become dependent on Medicaid or other public benefits, a special needs trust to help provide for them without cutting off access to medical care and other crucial services

Who Needs Estate Planning?

It’s generally beneficial for any adult to have at least a basic estate plan. Many people think wills and other estate planning measures are unnecessary for reasons such as:

• They’re young and healthy
• They don’t have a lot of assets
• They don’t have dependents
• Their spouse would be their preferred beneficiary and representative

However, these assumptions are usually erroneous. Though young, healthy people have a longer life expectancy and a lesser likelihood of death or incapacity, there are no guarantees. None of us knows exactly when we are going to pass away or when we might fall ill and need someone to step in and take care of our obligations for a time.

Nearly everyone has some assets–even personal property that may have only sentimental value–that will pass to someone else after their death. Someone will be appointed personal representative and have to identify creditors and round up any assets and take inventory and determine values and then distribute whatever there is. If there’s no will or other legally-enforceable arrangement for the property, then it will pass according to Florida’s law of intestate succession. That doesn’t always work out as you might have hoped.

How Does Intestate Succession Work in Florida?

Florida’s law of intestate succession lays out how property will be distributed if a Florida resident dies without making appropriate provisions, such as writing a will or creating a living trust and transferring property into it. Many people assume that if they die without a will, the person or people closest to them will automatically inherit, anyway.

To a degree, that’s true. But, it doesn’t always work out the way people expect. That’s especially true for people who:

• Have blended families, including stepchildren or others not related by blood or adoption
• Have children that are not of their current marriage
• Are in long-term partnerships but are not legally married
• Have no spouse or children living, but have other relatives

A Tampa-St. Petersburg estate planning attorney can be the best source of specific information about how your family would be impacted by intestate succession, and the best options for ensuring that those you care most about are provided for.

Tampa-St. Petersburg Area Probate Courts

Florida probate courts handle several types of matters, including:

• Probate/estate administration
• Trust matters
• Guardianship
• Baker Act petitions

How simple or complex a probate proceeding is depends on a variety of factors, including:

• How thorough the estate plan was
• The size and complexity of the estate
• The nature of the assets in the estate
• The efficiency of the personal representative
• Whether conflicts arise among beneficiaries and other interested parties

With the exception of some very small estates, Florida law requires that the personal representative administering an estate be represented by an attorney. That’s because the personal representative’s job can be challenging, and Florida law is very specific about the way certain tasks are carried out, the information that must be contained in other filings, the order of preference for paying debts of the estate and making distributions, and other aspects of the estate administration.

Most personal representatives aren’t attorneys or accountants, and may be entirely unfamiliar with Florida probate law and the necessary procedures. That’s where an experienced estate lawyer like Thomas Upchurch comes in.

Hillsborough County Probate Information

Tampa probate matters and others arising in Hillsborough County are filed in the Hillsborough County Probate Court. Hillsborough County is the only County in Florida’s 13th Judicial Circuit. There are two main locations:

Downtown Tampa

800 E. Twiggs Street

Plant City

301 N. Michigan Avenue

In 2019, the most recent year for which complete information is available, there were 2,907 probate cases filed in Hillsborough County.

Pinellas County Probate Information

Pinellas County has only about ⅔ the population of Hillsborough County, yet 2019 probate filings were considerably higher, at 3,607. Pinellas County and Pasco County together make up the 6th Judicial Circuit, and have a combined population similar to that of Hillsborough County. But, combined probate filings were 46% higher, for a total of 5,271 filings.

One reason for the higher probate activity in the 6th Judicial Circuit may be that the populations of Pinellas and Pasco Counties are significantly older than that of Hillsborough County. Both the city of Tampa and Hillsborough County have a lower percentage of residents aged 65 and older than the state of Florida, and a lower percentage than the U.S. as a whole. On the other hand, both Pasco County and Pinellas County have older populations. 22.6% of Pasco County residents and 25.4% of those in Pinellas County are 65 or older.

While estate planning is important for everyone, it is especially important for older people who are more likely to experience medical conditions that necessitate tough decisions, and who are often closer to issues like funding long-term care that may require years of advance planning.

The Pinellas County Court maintains probate case records at three locations:

Clearwater Courthouse

315 Court Street, Room 106

North County Branch (Clearwater)

29582 U.S. 19 North

St. Petersburg Branch

545 First Avenue North

What is Probate Litigation?

Litigation is simply a contested court matter. Probate litigation is litigation that arises in the course of administering an estate. Probate litigation is different from most other types of litigation in that the dispute is argued within another case–the probate matter.

One of the most common types of probate litigation, and the one you may be most familiar with, is a will contest. But, that’s just one type of contested probate matter.

Florida Will Contests

To contest a will means to go to probate court and argue that the will is not valid. Some of the grounds for a will contest in Florida include:

• A claim that the will was forged or altered
• A claim that there is or was a newer will that revoked the will that has been submitted to probate
• A claim that the will is technically defective, such as not having been properly witnessed
• A claim that the deceased was tricked into signing the will or was forced or coerced to sign it
• A claim that the deceased lacked the capacity to execute a legal document when the will was signed–this most often arises when the testator suffered from or is alleged to have suffered from dementia or a similar cognitive impairment

What Happens if a Will Contest is Successful?

If a beneficiary or other interested party initiates a will contest and succeeds in proving that the will was invalid, the will is thrown out. What happens next depends on the circumstances.

If there was a later, valid will: If the will was invalidated because it wasn’t the testator’s most recent will and the later will is available, it will be submitted to probate. Assuming there are no further contests, administration of the estate will proceed according to the terms of the new will.

If there was an older will: If a will is invalidated and the testator had a previous, unrevoked will, then the older will is revived by the invalidation of the later will. Note, however, that if the prior will was revoked in some manner other than the creation of the new will–for example, if the testator tore up the will and declared that he was revoking it and then later created the invalid will–the revocation will likely be deemed effective.

If there was no other will or the only prior will was revoked: If a will is found invalid and there is no other valid will, the deceased effectively died intestate. That means that administration of the estate will proceed according to Florida’s laws of intestate succession.

When Does It Make Sense to Contest a Will?

Tempers and tensions can run high in estate matters, and the natural inclination may be to fight if there is any chance of irregularity. But, contesting a will isn’t always beneficial–even if you win. If you have doubts about a will that has been submitted to probate, it is in your best interest to speak with a Tampa-St. Petersburg probate litigation attorney as soon as possible. An experienced probate lawyer can explain what will happen if you prevail in a will contest, and also help weigh the cost of probate litigation against any possible gains.

Other Types of Probate Litigation

Claims against the Personal Representative

Estate litigation involving the personal representative may be as simple as filing a petition to force the personal representative to fulfill certain responsibilities that are lagging. Or, it may be as serious and complex as a claim that the personal representative has breached their fiduciary duty to the beneficiaries of the estate and engaged in some sort of self-dealing or other prohibited activity.

The evidence required and the remedy will depend in part on the type of litigation. An action to compel the personal representative to provide an accounting or fulfill some other duty may result in a court order directing the personal representative to take specific action by a specific date. Where more serious breaches are involved, the personal representative may be removed, or may even be personally responsible for losses caused by a breach of fiduciary duties.

Like a will contest, this type of probate litigation requires careful consideration. With a few exceptions, the estate pays the attorney representing the personal representative in probate litigation, and will also be responsible for litigation costs such as audits and appraisals. That means probate litigation can quickly deplete estate assets. An experienced Tampa-St. Petersburg estate litigation lawyer can help you make an objective assessment of the pros and cons of pursuing estate litigation.

Elective Share Litigation

A surviving spouse in Florida has a right to a certain minimum share of the deceased spouse’s estate, regardless of what the will says. Claiming this share is known as “electing against the will.” Claiming an elective share isn’t in itself probate litigation. The spouse is automatically entitled to the elective share. However, electing against the will may trigger probate litigation. That’s because there may be disputes about which property should and should not be included in the elective share calculation. And, there may be conflict over valuation of assets included in the calculation.

Upchurch Law Offers Probate Law Services in Tampa-St. Petersburg

Attorney Thomas Upchurch has assisted Florida residents with estate administration, and probate litigation for decades. When the financial security of your loved ones is at stake, there’s no substitute for the knowledgeable guidance and dedicated advocacy of a veteran probate litigation attorney.

You can get started right now

Call 386-320-6169.