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Florida Estate Litigation Guide


When disputes about estates, wills, and trusts arise after the death of a loved one, having an experienced and determined estate litigation attorney protect your rights can be crucial. If you suspect mismanagement of an estate or trust, or found evidence suggesting that your loved one was a victim of undue influence, Upchurch Law can be by your side and fight strongly for what you deserve. 

Estate litigation and trust litigation often involves complex legal issues requiring a thorough understanding of the applicable laws and rules. Attorney Thomas Upchurch has extensive estate litigation experience and can determine the appropriate legal options and next best steps for your specific case. 

What to Know About Trust Litigation and Probate Law

Estate litigation is a broad field that deals with all legal matters concerning the distribution of an estate after an individual’s passing, such as probate litigation, trust litigation, and more. The following provides a guide to wills and estate litigation issues that can arise before and during probate. 

What to Know About Will Contests

In certain circumstances, personal representatives, beneficiaries, or other legally entitled individuals can challenge the validity of a will.

Do I Have Grounds for Contesting a Will?

The person creating the will, also called the “testator,” is generally entitled to distribute their estate according to their wishes. The heirs or beneficiaries of the estate typically do not have a claim on specific assets or properties. Therefore, if you are looking to contest a will, you must have a valid reason. Legitimate reasons for contesting a will can include:

  • The testator lacked the mental capacity to understand the contents of the will fully
  • Another individual unduly influenced the testator 
  • The testator was a victim of fraud or coercion
  • The will is legally invalid due to technicalities such as missing witness signatures
  • A beneficiary was improperly removed from the estate

Contesting a will that could be invalid due to a technicality can be straightforward. For a will to be valid and legal in Florida, it must be signed by the testator and two witnesses. A will that was not witnessed when signed is generally invalid. 

However, a claim alleging that the testator was incapacitated or under the undue influence of another individual while signing the will can be more challenging to prove. Such claims may have to call on expert witness testimony and typically require the expertise of an experienced and dedicated estate litigation attorney.

Who Can Challenge a Will?

Individuals who may be entitled to contest a will can include:

  • Beneficiaries named in the will
  • Beneficiaries that were removed from the will
  • Other individuals with a legal interest in the estate

How to Contest a Will

An individual seeking to contest a will must file a petition with the probate court. Petitioners typically aim to invalidate a current will and reinstate a previous that lists them as heirs and beneficiaries. It is important to note that the timeline for challenging a will is prohibitively short. The general timeline for filing a petition is only 90 days after the notice of administration. However, in some cases, the time period can be as short as 20 days. Seeking legal advice as soon as possible can be vital if you are considering contesting a will.

What Is a Litigation Lawyer?

A litigation lawyer can help you contest a will. Since the burden of proof falls on the petitioner, the individual contesting the will, consider speaking to a seasoned estate litigation attorney who can determine whether you have a case.  Your lawyer can also help gather the evidence proving the invalidity of a will.

Outcomes of Contesting a Will

Potential outcomes of contesting a will can include:

  • The challenge fails, and the will remains valid
  • The will is declared invalid, and a previous will is reinstated
    • If there is no prior will and the will is deemed invalid, the estate will be divided according to intestate laws 
  • Only certain parts of the will are declared invalid, and the rest remains enforceable

Consider A Will Contest Carefully

An individual hoping to challenge a will should consider their options thoroughly. Firstly, challenging a will can be a costly endeavor and should always be weighed against the potential benefits and the value of the estate in question. Secondly, a will contest can become highly emotionally charged and potentially lead to long-term disagreements, anger, and resentment in the family. 

However, in some instances, challenging a will can be the only way to help you receive your rightful inheritance and honor the last wishes of your loved one. Although the will you are hoping to challenge may contain no-contest provisions, you will remain entitled to your inheritance as mentioned in the will, according to Florida law. 

An experienced trust and estate litigation attorney like Thomas Upchurch can determine whether you have a good case and could move forward with contesting a will. 

Proving Undue Influence Claims

Discovering that someone exerted undue influence on a loved one can be distressing. While you can potentially contest a will if undue influence occurred, in Florida, the burden of proof falls on the petitioner. Simply assuming that undue influence took place will not be enough to have a case. Typically, the petitioner must provide extensive evidence proving undue influence, such as comprehensive medical and financial records. A qualified trust and estate litigation lawyer can assist with establishing undue influence.

Undue Influence in Estate Disputes

Will contests due to undue influence are among the top five reasons for estate litigation. Proving undue influence generally requires comprehensive evidence proving that:

  • The alleged influencer had a confidential relationship with the testator
  • The alleged influencer stands to benefit substantially from the will
  • The will is unexpected (such as no close family members inheriting property)
  • The testator was susceptible to undue influence due to frailty or disease
  • The alleged influencer actively procured the will

Testimony from witnesses such as family members, caregivers, and others, can be crucial for proving undue influence.  Once you present a preponderance of evidence proving undue influence, the burden of proof will shift to the respondent. The alleged undue influencer will then have to prove, with comprehensive evidence, that they did not unduly influence the testator. 

Undue influence cases can be challenging to litigate. If you suspect that your loved one was the victim of undue influence due to another family member, dishonest caregiver, or another individual, consider contacting an estate litigation lawyer for advice and legal guidance. Florida estate and trust litigation attorney Thomas Upchurch focuses entirely on probate law and has successfully litigated numerous undue influence cases.

The Facts About Probate Law in Florida

Probate, in short, is the legal process designed to ensure that:

  • A decedents’ assets are inventoried
  • Creditors of the deceased are paid
  • The estate is distributed according to the deceased’s wishes

How Does Probate Work?

The individual named as executor in a will, or if there is no will, an individual appointed by the court will file the relevant documents in a local probate court to get the process started. The executor will also inventory and manage the deceased’s assets during probate. 

How assets are divided in probate will depend on whether the deceased left a will or died intestate (without a will). If there is no valid will, assets will be distributed according to Florida state law.

The Probate Process Can Take Time

Probate can be relatively quick with a small and uncontested estate. However, in some cases, it can take years before probate concludes. Disputed probates involving estate litigation, such as will or trust challenges, can mean that heirs and beneficiaries have to wait a year or more before they can receive an inheritance.

Is Probate Avoidable? 

In theory, yes, it is possible to avoid probate. However, in practice avoiding probate is almost impossible and trying to do so involves meticulous and timely estate planning. Transferring all assets into a living trust can be one of the few ways to avoid probate. However, even a living trust is not a guaranteed way to avoid probate, as any unassigned assets at the time of death of the individual will trigger the probate process.

What is Estate Law?

Estate law deals with probate litigation matters such as those concerning trusts and wills. When conflicts arise during probate, litigation can become necessary. Upchurch Law can help to protect your rights and best interests as a beneficiary and heir. If you are looking for guidance with wills and estate law, contact us for a consultation. 

Questions to Ask an Estate Litigation Lawyer

If you attend the first consultation with an estate litigation lawyer, you may wish to ask a number of important questions, such as:

Do I Have a Strong Case?

Asking about the strength of your case is perhaps the most important question to ask your estate litigation attorney. An experienced and ethical attorney will tell you honestly whether you have a good chance of winning your case or whether legal action is unlikely to be successful. An experienced trust and estate litigation attorney cannot promise success. However, they will look out for your best interests and can help you make an informed decision.

What Is Your Experience with Estate and Probate Litigation?

When it comes to trust and estate litigation, you should look for a lawyer who has successfully litigated cases that are similar to yours. An experienced lawyer with a proven track record, such as Thomas Upchurch, can represent you strongly and work tirelessly for the best outcome of your case.

Do You Handle My Litigation Case Personally?

In some cases, potential clients meet with a senior partner at the initial consultation only to find out later that an associate or junior attorney will handle their estate litigation case. Make sure to ask who will see your case through from beginning to end.

How Easily Can I Reach You or My Attorney at Your Firm If I Need to Speak with Someone?

Good communication is vital for a successful client and attorney relationship. Ask your potential estate litigation attorney how often they will be communicating with you during the case and by which means. 

Trust and Estate Litigation FAQ

What Is Estate Litigation?

Although Florida probate is a legal proceeding, it generally does not involve litigation. Estate litigation typically arises when there are disputes between heirs or beneficiaries of an estate. One of the most common types of estate litigation is challenging the validity of a will. However, there can be other reasons for litigation, including:  

  • Breaches of fiduciary duties 
  • Contesting a trust
  • Action to remove a personal representative
  • Undue influence

Is Probate the Same as Litigation?

Probate can easily be confused with trust and estate litigation. However, they are distinctly separate issues. Probate refers to the legal process of managing and distributing a deceased person’s estate and assets. The probate court oversees the creation of an inventory of assets, paying the deceased’s debts, and distributing the estate among heirs and beneficiaries. 

While the process of probate can be smooth and straightforward, major conflicts can lead to trust and estate litigation.

What Does a Florida Estate Litigation Lawyer Do? 

Your Florida estate litigation attorney can represent individuals in a wide variety of disputes related to the administration of an estate after the death of an individual. Disputes can include contesting a will, challenging a trust, suing for breach of fiduciary responsibility, and others.

What Is the Difference Between Estate Litigation, Probate Litigation, and Trust Litigation?

Estate litigation is an umbrella term and frequently deals with both probate litigation and trust litigation. However, there are some marked differences between a probate and trust litigation case. For example, probate litigation, unlike trust litigation, occurs within the probate estate rather than in civil court. 

What is trust litigation? Trust litigation generally involves all types of disputes regarding trusts, such as conflicts between trustees and beneficiaries. Trust litigation requires filing a separate lawsuit outside of a probate case. Embarking on trust litigation can be a time consuming and costly affair and potentially deplete the funds of an estate considerably. 

Trust and probate litigation are governed by a different set of laws. While the Florida Probate Code generally applies to probate litigation, trust litigation adheres to the rules of Florida civil procedure as per Florida Statute 736.

What Is a Probate Dispute?

A probate dispute can refer to a variety of legal proceeding and issues, including but not limited to:

  • Disputes of a trust or a will
  • Breach of fiduciary duty
  • Incapacity or undue influence cases

An experienced probate litigation attorney can help heirs and beneficiaries with probate disputes such as will, trust, and other estate disputes.

What Are Estate Pleadings?

Filing an initial estate pleading is the first stage of an estate lawsuit. Since estate litigation is typically filed in a probate court, the initial pleading is called a “petition” rather than a “complaint,” which is the terminology used in a civil court case.

The initial estate pleading is filed by the petitioner against the respondent. The pleading will contain the facts of the case and the remedy that the petitioner is seeking from the respondent. Examples of pleadings can include:

  • Asking to appoint a conservator
  • Removing a trustee
  • Undue influence

How a Florida Trust or Estate Litigation Lawyer Can Help You

An experienced and qualified trust or estate litigation lawyer can help you with all types of conflicts arising from trusts, wills, and estates. Upchurch Law’s practice areas include, among others:

Estate Litigation

If you believe your loved one was the victim of undue influence, or you have concerns about the legal validity of a trust or will, a seasoned estate and trust litigation lawyer can be here for you. Your attorney can protect your rights, advise you of your legal options, and explain how to move forward with a claim. Upchurch Law can handle all aspects of your Florida estate litigation case from discovery through to trial.

Florida Will Contests

If you suspect that a will is invalid, whether due to a legal technicality, undue influence, or fraud, a Florida estate litigation lawyer can contest the will.

Trust Administration 

Trusts have many advantages and can be an excellent choice for a variety of financial planning issues such as:

  • Estate planning
  • Asset protection
  • Tax efficiency
  • Providing for loved ones with special needs

In some cases, living trusts can help avoid probate or speed up the process.

A trust and estate litigation lawyer can ensure that your trusts are administered correctly and tailored to suit your personal circumstances.

Estate Planning

While nobody likes to think about their death, comprehensive estate planning can be crucial for protecting your loved ones from financial chaos due to unforeseen circumstances. Some of the litigation issues that estate and trust litigation lawyers deal with arise due to the lack of adequate and timely estate planning. 

Protecting your family with a detailed estate plan can be an act of love. Upchurch Law offers expert legal estate planning advice and can tailor an estate plan to your individual needs and the needs of your loved ones.  

Call Upchurch Law for Florida Estate Litigation Help Today

Missing out on your rightful inheritance and finding out that your deceased loved one’s wishes were not respected can be distressing and upsetting. However, estate litigation and trust litigation can help you recover what you deserve, and Upchurch Law can be here for you every step of the way.

Florida Probate Rules and the Florida Probate Code can and do change. Moreover, the rules and regulations applying to estate litigation can be full of pitfalls. Working with a dedicated and seasoned estate litigation attorney with a successful track record can offer you the reassurance that your best interests and legal rights are well protected.

Attorney Thomas Upchurch is committed to protect the interests of legitimate heirs. If you are looking for estate litigation help and advice, schedule a consultation with us today at (386) 272-7445

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