Florida Will Contest Attorney
Helping Floridians Protect Their Rightful Assets
A will is intended to ensure that the creator’s assets are distributed according to his or her wishes, rather than passing according to the Florida law of intestate succession. However, the fact that a deceased person left behind a will doesn’t necessarily mean that document will dictate how property is distributed. A Florida will may be contested for several reasons.
Whether you are a named beneficiary who may be facing a will contest from another interested party or you believe that a loved one’s will is invalid, it is important to understand the grounds on which a will may be contested. It’s also important to be aware of the potential time and expense associated with a will contest, as estate litigation may diminish the estate, significantly reducing the assets available for distribution.
The information below is a general overview to help you understand when and how a will may be challenged.
Your Best Source of Information is an Experienced Florida Will Contest Attorney.
Grounds for a Florida Will Contest
A Florida will may be contested for any one of (or combination of) the following reasons:
- The will was not properly executed
- The testator lacked the capacity to create a valid will
- The will had been revoked or revised
- The testator was subjected to undue influence
- The testator created and/or executed the will under fraud or duress
While questions of execution may be fairly straightforward, proving lack of capacity, undue influence, fraud or duress is often complicated.
Need Help With a Will Contest in Florida? Contact Upchurch Law now!
What about Spousal Elective Share?
Spousal elective share is a legal term relating to inheritance and is the percentage of an estate a surviving spouse may claim, regardless of the terms of the deceased’s will. The elective share protects a surviving spouse in the event that the deceased attempted to disinherit him or her, or left the surviving spouse only a small bequest. The elective share also provides a safety net for the surviving spouse if there is an error in the will, or the deceased failed to update the will to provide for the surviving spouse.
This helps to ensure that a spouse who has been a partner in the marriage is not left with nothing, or relatively little, when the other spouse passes away.
Calculating the elective share can be complicated, and if the deceased spouse has left some assets to the surviving spouse, it isn’t always clear whether it would be beneficial to take the elective share. A conversation with an experienced estate lawyer can help the surviving spouse decide how to proceed, and others named in the will understand how an election against the will could impact their interests.
Consult an Experienced Florida Will Contest Attorney as Soon as Possible
The timeline for contesting a will is tight, but that’s not the only reason to act quickly to secure legal advice and representation. The period following the loss of a loved one is always stressful and conflict over the deceased’s will can strain family relationships and lead to unproductive and even counterproductive action on all sides.
A knowledgeable legal advocate can help to keep the dispute focused where it counts, on the factors that will determine the outcome of a will contest. Give yourself that advantage today by scheduling a consultation with attorney Thomas Upchurch.
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.
They are well organized, detail oriented, and always looking for the best solution to the client's situation (not just the easy fix).- Chris B.
It gave me peace of mind and when I return I will go to him for my Will.- Lauri B.
Thomas Upchurch and his team have been remarkable in helping me take care of my grandmother's estate needs and Medicaid application to get her the care she deserves.- Ashley M.
I have had the privilege of working with Mr. Upchurch on behalf of numerous shared clients over the years. Each and every client has always expressed to me their thankfulness that Thomas Upchurch was involved in their case.- Ron Z.
I was highly impressed with Mr. Upchurch's skills and integrity, and feel very fortunate to have had him as our family's legal representative.- Gregory H.
Thomas and his staff were so helpful and professional which really helped my family and I when we didn't know what to do.- Maggie
Upchurch Law, and particularly Crystal Lukes (Legal Assistant), could not have been more competent, informative, pleasant to work with and aggressive in pursing a Probate close in a timely fashion.- Dorothy K.
Attorney Thomas Upchurch is professional, efficient, and knowledgeable of both probate litigation and estate planning.- Susan S.