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Written by Thomas Upchurch
When you’ve been named as a beneficiary in a Florida will, you may be unsure about what’s required of you and what rights you may have. Uncertainty can be stressful, particularly during a time when you’ve lost a loved one and family assets and heirlooms are being divided.
This general overview will help you understand your rights and when you may want to consider taking steps to assert them. An experienced Florida probate attorney is the best source of guidance specific to your situation.
Florida probate law specifically lays out the rights of a beneficiary under a Florida will. These rights fall into two general categories: notice and other administrative rights and litigation rights.
In Florida, a personal representative is appointed to manage the estate, resolve debts, inventory property, file and pay taxes, and make distributions to beneficiaries. The personal representative has a long list of responsibilities. A beneficiary is entitled to:[a]
While the personal representative is required to serve notice, most of the rights listed above require action on the part of the beneficiary. For example, beneficiaries don’t automatically receive copies of the will. However, if a beneficiary requests a copy of the will, the personal representative must provide it.
With this in mind, communication is generally the first step. If you don’t have all of the information you want or need, you may be able to obtain it by asking the personal representative. In fact, you may be able to obtain additional information directly from the personal representative, even if you don’t have a statutory right to that information.
If the personal representative fails or refuses to provide documents or information you are legally entitled to receive, it’s time to consider more formal action.
If the personal representative has not attended to one or more of these responsibilities and you simply want to gather information and/or move the case along, you can petition the probate court for an order requiring the personal representative to take a specific action, such as to prepare the accounting by a specific date. Similarly, if the accounting appears to be incomplete or inaccurate, you can object to the accounting.
You may also petition the court for partial distribution if the estate is complex or the administration is taking a long time. However, it’s important to note that you don’t necessarily have a right to interim distribution of assets. The court will determine whether such a distribution is appropriate based on factors like the size of the estate, the distribution requested, and the anticipated debts, tax obligations, and costs of administering the estate.
Probate litigation covers a range of adversarial issues within the probate case. Technically, some of the actions mentioned above, like petitioning to force the personal representative to take a certain action or objecting to the accounting is probate litigation. But, asserting some rights requires more significant action.
Some of the most common examples include:
Beneficiaries of a will (and certain other interested parties) have a right to challenge the validity of a will. This is commonly known as a “will contest.” An interested party can contest a will within the probate case if he or she believes that the will is a forgery, is not the most recent will, was signed under duress, wasn’t properly executed, or for some other reason is not legally valid.
If you’re considering a contesting a will, it’s important to speak with an experienced probate and will contest lawyer in Florida as soon as possible after you realize there may be a problem. The time frame in which you may contest a Florida will is short. And, it’s important that you fully understand the investment contesting a will requires and the possible outcomes. If you are already a beneficiary under the will, it may not be in your best interest to contest. An experienced estate and probate lawyer can help you assess the situation and determine the best course of action for you.
Many issues with the personal representative may be handled relatively simply, as described above. But, some problems are more serious than the personal representative dragging their feet on distributing assets or failing to file the accounting within the normal time frame.
For example, a beneficiary may be concerned that the personal representative is breaching their fiduciary responsibility to act in the best interests of the beneficiaries. This may mean something as sinister as a personal representative diverting estate assets for their own use, or may simply mean that the personal representative is negligent with estate assets.
If the situation is serious enough, a beneficiary has the right to petition the court to remove and replace the personal representative. As with other types of probate litigation, it’s important to weigh the pros and cons of initiating litigation. Florida estate law does impose certain obligations on the personal representative, but doesn’t expect that person to be an expert. Personal representatives are not required to perform perfectly.
The beneficiary of a Florida will doesn’t necessarily need a probate attorney. In Florida, the personal representative of an estate must typically be represented by an attorney, who will assist in making sure the personal representative has the information necessary to fulfill their responsibilities.
However, if problems arise that aren’t easily resolved through a conversation with the personal representative, a conversation with a local probate lawyer is the next step. Probate litigation can be complicated, and isn’t always in the best interests of a beneficiary. An experienced probate lawyer like Thomas Upchurch can help you decide on the best solution given your specific circumstances.