Probate Litigation

Aventura Attorneys Skilled in Wills and Trusts Disputes

Florida law imposes numerous requirements on the probate process when a will is offered for probate. Surviving family members in South Florida are sometimes surprised by the contents of a loved one's will, and will contests are the most common type of probate litigation. Other types of probate litigation include will construction disputes to determine how a decedent's estate should be distributed, elective share litigation, determinations of heirs when there is no will, breach of fiduciary duty actions, the removal of fiduciaries, accountings, and surcharge actions to restore losses suffered due to a fiduciary breach. If you need to bring or defend against these types of matters, the Aventura probate litigation lawyers at Stok Folk + Kon can assist you.

Common Forms of Probate Litigation

A Notice of Administration informs interested parties that a certain person has died, that the will has been filed for probate, and that an object needs to be filed within a certain time frame or be barred. Usually, the time period is only 20 days. There are many potential grounds to contest a will, including a mistake in execution, a lack of mental capacity, duress, undue influence, and an improper signing of the will.

A contest based on undue influence, for example, alleges that the testator may not have made the will free of coercion by someone in a position of trust and control. To prove a lack of testamentary capacity, someone challenging the will must prove that at the time the testator executed the will, they did not have the necessary mental capacity to understand how much and which kinds of property they had, the loved ones and family who would ordinarily receive that property, and how the will disposed of the property. Some reasons that a person may lack capacity include heavy medication, extreme age, and dementia.

Sometimes a personal representative who is appointed to settle a decedent's estate fails to properly administer it, according to the will's terms, or fails to do so as efficiently as is necessary to further the estate's best interests. The personal representative has a fiduciary duty that is the same as that of a trustee of an express trust, and they may be held liable through litigation for any damages or losses that arise due to a breach of duty. To establish a breach of fiduciary duty, you must show the existence of a particular duty, a breach of the duty, and damages that arose because of it.

In some cases, the appropriate remedy is the removal of the fiduciary, while in other cases, the remedy is a surcharge action. Surcharge actions may be filed to impose personal liability on a fiduciary for a breach of trust, based on the fiduciary's intentional or negligent conduct. The court is supposed to award taxable costs and may direct payment from a party's interest in the estate.

Explore Your Options with a Probate Litigation Lawyer in Aventura

Probate litigation may be hotly contested, particularly when family members are involved. It is important to seek representation from a knowledgeable attorney who can advise you about your options. If you have a dispute related to a will, the executor of the will, or the probate process, the Aventura probate litigation attorneys at Stok Folk + Kon may be able to help. We also assist people in Hollywood, Fort Lauderdale, Hallandale, Coral Springs, Pembroke Pines, and other cities in Broward , Maimi-Dade and West Palm Beach Counties. Call us at (305) 935-4440 or complete our online form to schedule an appointment if you need a probate or trust litigation attorney.