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Probate & Estate Litigation

Florida Probate & Estate Litigation Lawyer

Restore a Legal Will with an Experienced Florida Estate & Trust Litigation Lawyer

If your loved one has been coerced to create a new will or trust, an expert Daytona Beach, Florida Estate Litigation Lawyer can help you reclaim probate rights through Florida estate litigation. This is a complex field of law, and cases can take many different forms.

Estate litigation lawyer Thomas Upchurch of Upchurch Law has extensive experience with Florida probate and estate litigation disputes, and will fight to bring exploitative parties to justice and restore your loved one’s legitimate will or trust.

Contact Upchurch Law for your free case evaluation with our Florida attorney for probate and estates at (386) 272-7445

Probate and Estate Litigation Services

Dedicated to Protecting Your Rights

What is Florida Estate Litigation?

The standard Florida probate process involves a court proceeding, but that proceeding is typically of an administrative nature and not described as “litigation.” Estate litigation arises when a conflict occurs and one or more parties asks the court to settle those differences. In the probate process, these matters are litigated within the probate case, rather than through the filing of a separate lawsuit.

Challenging the validity of a will is probably the best-known type of probate litigation, but many other issues may trigger estate litigation. For example, beneficiaries may:

  • Seek to have a personal representative removed for breach of fiduciary duty
  • Challenge the accuracy of accountings provided to the court and request additional information or an outside audit
  • Object to the manner in which the personal representative chooses to distribute estate assets

Similarly, trust litigation may relate to the validity of the trust itself, or may involve claims relating to the trustee’s performance of his or her duties. This type of litigation can be complicated, and is best undertaken with the assistance of an attorney who has extensive experience in will contests, trust litigation, and other types of trust and estate litigation.

With estate litigation, you need an attorney with proven success in this field of law. Mr. Upchurch focuses exclusively on probate matters, and has helped many clients protect their best interests.

The Importance of Timing for Estate Litigation in Florida

Many people are understandably reluctant to commence estate litigation. After the death of a loved one, the last thing most people want is a legal battle. Beneficiaries and other concerned parties may also be hesitant to trigger stresses and conflict among family members during a difficult time. Of course, Florida law and procedure requires that certain types of actions be filed within specified time periods, but that’s not the only reason time is of the essence.

When estate administration is underway, the personal representative generally has control of the assets of the estate, and may pay bills, manage investments, manage property, conduct sales, and distribute assets. Although he or she is required to fulfill these duties in accordance with the terms of the will, recapturing distributed assets or losses associated with poor management may be difficult or impossible. And, of course, if the issue is the validity of a will or trust document, then even a trustee or personal representative who is faithfully fulfilling his or her duty may be moving assets out of reach of those truly entitled to inherit through the estate or benefit from the trust. In short, estate property is at risk until a beneficiary or other party with standing takes action.

Therefore, if you have concerns about the validity of a will or trust, believe that your loved one may have been subjected to undue influence, or suspect that the estate or trust is not being properly managed, it is in your best interest to get knowledgeable guidance right away. Consulting an experienced estate litigation attorney can help you to determine whether additional action is needed, and how best to proceed in your specific circumstances.

Protecting Your Rights in Undue Influence and Lack of Capacity Matters

In an ideal world, everyone would make his or her true wishes clearly known through the establishment of a valid trust or creation of a valid will. Florida law gives great deference to the wishes of the testator or trust grantor. However, under certain circumstances, a Florida court may set aside a will or trust.

While successful contests are sometimes based in technical flaws, such as an improperly witnessed will or an ineffectively drafted trust document, the most common issues involve lack of capacity of the testator or undue influence in the creation of the instrument.

In a case of undue influence or lack of capacity, the will may not accurately reflect what the deceased person would have wanted. In such cases, an experienced Daytona Beach, Florida estate litigation attorney such as Thomas Upchurch can be your best resource.

When you retain Mr. Upchurch to challenge a will or trust, he will:

  • Assess the situation and advise you of the available claims and offer an educated opinion as to the likelihood of success
  • Assist in gathering evidence and assembling the strongest possible case on your behalf
  • Manage procedures, deadlines, pleadings, and other technical requirements
  • Negotiate on your behalf if settlement is a reasonable option
  • Fight in court for your rights and to see that your loved one’s true wishes are carried out

If you fear that your loved one has been the victim of a dishonest caregiver, manipulative family member, or simply lacked legal capacity at the time will was written and executed or a trust was created, contact us online now or call (386) 272-7445.

Florida Undue Influence Cases

Undue influence cases most commonly involve an unscrupulous caretaker or family member who takes advantage of a sick or elderly person’s vulnerability and isolation to persuade him or her to execute a will or trust that favors that person’s interests, or make changes to existing estate plans. The pressure applied in undue influence cases varies.

In some cases, the influence is psychological: A caretaker or close relative may cultivate dependence, feed an elderly or ailing person misinformation about other relatives or the legal process, or win trust and steer the person to sign documents that he or she may not understand or that may not accurately reflect his or her stated wishes. In other cases, the influence may be more direct, such as a caretaker making physical threats or leading a dependent person to believe that he or she must do as the influencer wishes or else be left without necessary assistance.

Lack of Capacity Cases

Lack of capacity may be an issue in an undue influence case, or may stand alone as grounds for challenging estate planning instruments such as a will or trust. In simplest terms, lack of capacity means that the testator or trust grantor was not legally competent to make legally binding decisions and create or modify estate documents at the time the challenged instrument was created.

A person may be legally incapacitated for many reasons. Some of the most common reasons among the elderly and terminally ill include dementia, Alzheimer’s disease, medical conditions impacting cognition, and impairment due to medication.

Assessing Incapacity or Undue Influence after the Fact

Unfortunately, undue influence often goes undetected until the testator or trust grantor is deceased, or has progressed to such diminished capacity that he or she cannot provide information about his or her wishes and the process that led to creation of the documents. Similarly, relatives may be unaware that their legally incapacitated loved one drafted a new will, created a codicil, or otherwise attempted to modify the estate plan.

That means that family members, with the help of an estate litigation attorney, will typically have to establish the testator’s mental capacity at the time the document was executed and/or the influence exerted on him or her without input from the affected person or the ability to secure a direct assessment of his or her faculties.

Evidence in Lack of Capacity Cases

In a lack of capacity case, the evidence will mainly come from two sources: medical records and medical professionals who had the opportunity to assess the patient around the time the instrument was created, and the observations of those who interacted with the testator or grantor during that period. Other information may also impact the court’s assessment. For instance, a new will that is a dramatic and unexplained departure from the creator’s consistently expressed past wishes may support the challenge.

Evidence in Undue Influence Cases

Undue influence may not be immediately obvious, even if the estate lawyer drafting the documents has the opportunity to observe the client and the influencer together. It is not unusual for a person who is elderly or in poor health to request the assistance of a younger relative or caretaker in attending to matters such as estate planning. Those closest to a person are most likely to be beneficiaries and also the most likely to be called upon for help.

When undue influence is at issue, the court will have to weigh the degree of involvement as it assesses whether or not the testator was acting voluntarily, or whether he or she was under the influence of a friend, relative or caretaker.

Some of the factors to be considered include:

  • Who chose and made initial contact with the attorney?
  • Did the beneficiary transport the testator to the attorney’s office?
  • Was the beneficiary present when the contents of the will and/or trust were discussed?
  • Was the beneficiary present when the documents were executed?
  • Who was in charge of safeguarding the will?

Secure the Assistance of a Top Florida Estate Litigation Lawyer Today

Attorney Thomas Upchurch has extensive experience dealing with probate and estate litigation in Florida. He is familiar with the complex procedures and requirements associated with this type of litigation, and is dedicated to protecting the interests of legitimate heirs and beneficiaries. He also understands the stress and emotional issues associated with seeing unscrupulous parties try to derail your loved one’s wishes and divert assets. That’s why we combine compassionate, empathetic client service with aggressive representation.

If you need help to fight back against an exploitative caretaker or family member, a dishonest or unqualified personal representative or trustee, or other party who is jeopardizing your loved one’s legacy, schedule a consultation today.


Get Experience on Your Side
Daytona Beach probate attorney Thomas Upchurch of Upchurch Law offers services to those in need of an elder law attorneyestate planning & estate litigation attorneyprobate attorney, and more. When you are looking for someone to handle your affairs, you need an experienced Florida probate attorney who has handled many different situations.

Frequently Asked Questions

Have questions? We are here to help. Still have questions or can't find the answer you need? Give us a call at 386-272-7445 today!

  • What is the deadline for exercising the right to an elective share?
    The surviving spouse must file his or her election within six months of being served with Letters of Administration or two years after the date of death—whichever comes first. It is possible to obtain an extension to claim the elective share, but there’s a deadline for that, too, so the sooner you speak with an experienced estate lawyer and gather the information you need to move forward, the better.
  • Does Florida have an inheritance or estate tax?
    The state of Florida does not impose either an estate tax or an inheritance tax. That means that the estate itself is not taxed, and beneficiaries are not taxed on the property they receive through intestate succession or administration of a will. Florida residents who inherit estates may be subject to federal taxes, but this only applies to estates valued at more than $11.2 million (as of 2018)
  • What will the surviving spouse inherit in Florida?

    The elective share is just one factor in determining how much the surviving spouse will inherit in Florida. For example, if there is no provision for disposition of the deceased’s assets, the surviving spouse will receive either the entire estate or half of the estate—more than he or she would receive through the elective share.

    Alternatively, the deceased spouse may have bequeathed the surviving spouse the full estate, or some portion of the estate that is larger than the elective share.

    If the surviving spouse chooses the elective share, he or she will receive 30%, though calculation of that share is not as straightforward and clear as the percentage makes it sound

    It is also important to note that the surviving spouse—like any beneficiary—receives bequests from the estate based on the value of the estate remaining after debts of the estate, taxes, and costs of administration have been paid. Thus, 30% or 50% of the estate won’t be equal to 30% or 50% of the deceased spouse’s property. And, if the deceased left the surviving spouse a specific bequest, such as $250,000 rather than a share of the estate, the spouse will receive the full amount only if it remains available after expenses of the estate are paid.

  • Can an unmarried partner inherit?

    An unmarried partner can inherit if the deceased leaves behind a will, trust, or other vehicle that names the partner as a beneficiary. However, an unmarried partner is not entitled to inherit through intestate succession when there is no will, and will not be entitled to an elective share.

    Further, if the deceased partner was legally married to someone else at the time of his or her death, the surviving spouse’s elective share will take precedence over the terms of the will. Under those circumstances, the unmarried partner may receive less than the deceased intended, or even nothing.

  • Does a will supersede a spouse's interest in the estate?
    In short, no. In fact, choosing the elective share is also known as “electing against the will.” In simple terms, this gives the surviving spouse the opportunity to reject the terms of the deceased spouse’s will and instead take the share provided by Florida law.
  • Can a spouse be disinherited?

    In Florida, a surviving spouse cannot be effectively disinherited. If the decedent does not leave behind a will or other provision for disposition of assets after his or her death, the Florida law of intestate succession directs all or part of the estate to the surviving spouse.

    If the decedent has a will that leaves the spouse out, actively attempts to disinherit the spouse, or simply leaves the spouse less than the elective share under Florida law, the surviving spouse can simply opt for his or her elective share over the terms of the will.

  • What is elective share in Florida?

    Every state calculates the spouse’s elective share a bit differently. In Florida, the surviving spouse is entitled to 30% of the “elective estate.” However, determining exactly what is and is not included in the elective estate and the value of those assets can be complicated.

    For example, homestead property is included in the elective estate. But, how that property is valued for purposes of calculating the surviving spouse’s share of the estate depends on the legal interest the spouse receives and other factors. And, property may be counted toward the surviving spouse’s elective share even if that property is not part of the deceased’s estate.

    A local estate attorney who is experienced in handling elective share matters can be the best source of information about what is and is not included in the elective estate and how value will be determined.

  • Does a will override a trust?

    Although wills and trusts are both tools people can use to pass property after death, they are entirely separate and one does not supersede the other. A will dictates how property belonging to the deceased will be distributed after his or her death. However, property that has been placed in trust is the property of the trust, not of the deceased.

    A will and a trust may be used in combination. However, property that has been transferred into the trust and not transferred back out does not become part of the estate, and will be distributed according to the terms of the trust. Similarly, property that has not been transferred to the trust will pass through the deceased’s estate, whether under the terms of a will or intestate succession.

  • Can the executor of a will take everything?

    The executor of a will is legally bound to dispose of assets as the law requires and the will dictates. That means paying taxes, debts of the estate, and costs of administration, and then distributing the remainder of the estate to the designated beneficiaries. Occasionally, an executor may decide not to play by the rules, or may simply not be competent to manage the estate as required.

    Florida law protects beneficiaries from executor misconduct in a variety of ways, from reporting requirements to a process for removal of an executor who is not fulfilling his or her responsibilities. A local estate planning attorney can help assess the situation and determine the best approach under your specific circumstances.

  • What does it mean for the testator to be incapacitated?

    A will may be properly executed and still deemed invalid. One of the most common will challenges involves a claim that the testator lacked the capacity to make a will. This often arises with regard to elderly testators or those who were already suffering a final illness when the will was created.

    Capacity is determined on a case-by-case basis—the simple fact that the testator is of advanced age, is seriously ill, or even has been diagnosed with a condition that could potentially impact mental functioning won’t necessarily lead to a determination that the will is invalid. Rather, the court will look at the specific circumstances at the time the will was executed, including any medical condition, the impact of medications the testator may have been taking, and other factors.

    Will contests based on incapacity typically rely on witness testimony, of both medical professionals and of those who had the opportunity to observe the testator at and near the time the will was created and signed.

  • What does it mean to execute a will under duress?

    Will contests based on duress are relatively uncommon, both because the level of conduct that supports a duress claim is unusual and because it can be very difficult to establish that a testator acted under duress once he or she is deceased. Although there are exceptions, duress is most likely to occur when the testator is isolated with and dependent on a relative or other caregiver.

    Some examples of duress include threats of physical harm if the testator does not execute the will and withholding of care, food, medicine and other necessities.

  • When can a will be contested on the basis of fraud?

    There are two types of fraud that may form the basis for a will contest: fraudulent inducement and fraud in execution.

    Fraudulent inducement occurs when someone employs fraud to influence the testator’s decisions about how to dispose of his or her estate. Fraud occurs when:

    • The person makes false representations of material fact to the testator
    • He or she knows that the representations are false
    • He or she intends that the testator will act on the false information
    • Injury occurs as a result of the deception

    In the context of a will contest, the injury is typically that the testator makes a decision that he or she would not have made with accurate information, shifting assets away from anticipated beneficiaries.

    Fraud in the execution of a will is more straightforward than fraudulent inducement. The victim of fraudulent inducement knows what the will is and what it contains, but has made decisions based on falsehoods. When fraud is employed in the execution of a will, the testator may believe that he or she is signing something other than a will. Or, the testator may know that the document being executed is a will, but believe that it says something different than it does.

  • Can I contest a “Self-Proving” will?

    You may have heard that some wills are “self-proving.” While Florida law does allow for self-proving wills, the term is a bit misleading. A self-proving will is simply a will that is accompanied by an affidavit from the witnesses stating under oath that they signed the will as witnesses, and that they did so in the presence of one another and the testator.

    A self-proving will can save time and effort, because in a straightforward, uncontested probate administration, the affidavit allows the personal representative to move forward without summoning one of the witnesses to establish that the will was properly and voluntarily executed. However, the affidavit—like any other testimony—can be challenged. In addition, some grounds for a will contest may not have been apparent to the witnesses.

    So, while a self-proving will typically ease the burden of administration slightly, it does not render the will immune to contest.

  • Can a properly executed will be contested?
    Even if a will is perfect in form and has been properly signed and witnessed, it may be subject to challenge for other reasons. The testator may have been mentally incapable of executing a valid will at the time the document was signed, for example, or may have been tricked or pressured into signing the document.
  • Can I contest a will because it wasn’t properly executed?

    A Florida will may be deemed invalid because it wasn’t properly executed. Some failures in form are straightforward: for example, the will may be signed by only one witness, or may not be signed by witnesses at all.

    Often, however, the alleged flaw is less clear. For instance, a family member may claim that the testator’s signature was forged, or that the witnesses signed at separate times and places rather than in the presence of one another.

    If a loved one has died and you believe that the will was not properly executed, it is in your best interest to contact an estate litigation attorney as soon as possible. A lawyer who is experienced in handling will contests can advise you as to the likelihood of a successful challenge, and can explain the process and the resources required to contest the will.

    Similarly, if you are the executor of or a beneficiary to a will that is being contested, contact an attorney as soon as possible to learn more about how you can defend the will and protect your interests and those of other named beneficiaries.

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