How to Find a Will Contest & Estate Litigation Attorney in Florida

When a loved one passes away, the expectation is often a smooth transition of assets according to their final wishes. However, disputes can arise, challenging the validity of a will or the administration of an estate. Finding a qualified will contest or estate litigation attorney in Florida is crucial for anyone involved in such a complex and emotionally charged legal battle, whether you are seeking to challenge a will or defend an estate from a challenge.

These specialized legal professionals are adept at navigating the intricacies of the Florida Probate Code and other relevant statutes, offering the expertise needed to protect your rights and interests during what can be a highly contentious process.

Understanding Will Contests and Estate Litigation in Florida

Estate litigation encompasses a broad range of legal disputes that arise during the probate process or in relation to a decedent’s estate plan. While often used interchangeably, “will contest” specifically refers to a challenge to the validity of a deceased person’s last will and testament. In Florida, the legal framework for these disputes is primarily governed by the Florida Probate Code, Chapters 731-735 of the Florida Statutes.

What is a Will Contest?

A will contest, formally known as a “will caveat” in some jurisdictions, is a legal proceeding initiated by an interested party to challenge the validity of a will offered for probate. According to Florida Statutes §733.107, any interested person may challenge a will. This means that instead of the will being accepted as the final, legally binding document, its authenticity or legal enforceability is questioned in court. Success in a will contest can result in the entire will being declared invalid, or only certain provisions being struck down, potentially leading to an earlier valid will being probated or assets being distributed via Florida’s intestacy laws.

Common Grounds for Contesting a Will in Florida

Florida law provides specific grounds upon which a will can be challenged. An experienced attorney will analyze the facts of your case to determine if any of these apply:

• Lack of Testamentary Capacity: The testator (the person who made the will) must have been of sound mind at the time the will was executed. This means they understood they were signing a document that would dispose of their property upon death, knew the general nature and extent of their property, and knew the natural objects of their bounty (their family and loved loved ones). If the testator suffered from severe cognitive impairment, dementia, or other mental incapacities, the will may be invalid.
• Undue Influence: This is one of the most common grounds for a will contest. Undue influence occurs when a person exerts such control over the testator that the will no longer reflects the testator’s true wishes but rather the desires of the influencer. Often, this involves a confidential relationship (e.g., caregiver, family member, attorney) where the influencer benefits significantly from the will. Proving undue influence requires demonstrating that the influencer gained an unfair advantage and substituted their will for that of the testator.
• Improper Execution: Florida Statutes §732.502 outlines the strict requirements for a will’s execution. A will must be in writing, signed by the testator (or another person in the testator’s presence and at their direction), and attested to by two subscribing witnesses in the presence of the testator and each other. Failure to meet these formal requirements can render a will invalid.
• Fraud: Fraud occurs when the testator is deceived into signing a will or a provision in a will. This can take various forms, such as fraud in the execution (the testator is tricked into signing a document they believe is something else) or fraud in the inducement (the testator is misled by false statements into making certain provisions in the will).
• Revocation: A will can be challenged if it was revoked by a later will, codicil, or by physical act (like tearing or burning) with the intent to revoke. Sometimes, an older, valid will might be discovered, or evidence surfaces that the purported last will was, in fact, revoked.

Beyond Will Contests: Other Estate Litigation Issues

Estate litigation extends far beyond just challenging wills. Many other disputes can arise during the administration of an estate or trust:

• Breach of Fiduciary Duty: Personal Representatives (executors) and Trustees owe a fiduciary duty to the beneficiaries of an estate or trust. If they mismanage assets, engage in self-dealing, fail to provide proper accounting, or otherwise violate their duties, beneficiaries can sue for breach of fiduciary duty. This can be a complex area, often requiring detailed financial analysis.
• Elective Share Disputes: In Florida, a surviving spouse has a right to claim an “elective share” of the deceased spouse’s estate, regardless of what the will provides. Florida Statutes §732.2065 sets this share at 30% of the elective estate. Disputes can arise over the calculation of the elective estate or the proper distribution of assets to satisfy this claim.
• Homestead Property Disputes: Florida’s constitutional homestead protection offers unique challenges. Homestead property is generally exempt from creditors and descends in a specific manner, often overriding provisions in a will. Disputes frequently arise over who has the right to possess or inherit homestead property, especially when there are minor children or a surviving spouse.
• Trust Litigation: With the increasing popularity of revocable trusts (governed by Florida Statutes Chapter 736) as estate planning tools, trust litigation has become more common. This can involve challenging the validity of a trust on grounds similar to a will contest (capacity, undue influence), disputes over trustee removal, trust interpretation, or allegations of trustee misconduct. You can learn more about trusts and their role in estate planning Frequently Asked Questions

  What is the difference between a will contest and estate litigation?

  A will contest specifically challenges the validity of a deceased person’s last will and testament, usually based on grounds like undue influence or improper execution. Estate litigation is a broader term encompassing any legal dispute arising during the administration of an estate or trust, which can include will contests, but also disputes over fiduciary duties, elective share, trust validity, or homestead property.

  Who can contest a will in Florida?

  In Florida, only an “interested person” can contest a will. This typically includes beneficiaries named in a prior will, statutory heirs who would inherit if there were no will, or creditors who might be affected by the will’s provisions. A person must have a financial interest that would be impacted by the will’s validity.

  What are the deadlines for contesting a will in Florida?

  The deadline to contest a will in Florida is generally short. If you receive a “Notice of Administration,” you typically have 90 days from the date of service of the notice to file a petition to revoke probate. If there is no formal notice of administration, a will can generally be challenged within three months after the date of first publication of the notice of administration (if one is published) or within two years of the decedent’s death if no notice is published. Missing these deadlines can permanently bar your claim, highlighting the urgency of seeking legal counsel.

  Can I contest a trust in Florida?

  Yes, trusts can be contested in Florida on grounds similar to wills, such as lack of settlor capacity (the person who created the trust), undue influence, or improper execution. Disputes can also arise over the interpretation of trust terms, trustee misconduct, or removal of a trustee. Florida Statutes Chapter 736 governs trusts and provides the framework for such litigation.

  How much does it cost to hire an estate litigation attorney in Florida?

  The cost varies significantly based on the complexity of the case, the attorney’s experience, and their fee structure. Attorneys may charge hourly rates, flat fees for certain services, or work on a contingency basis (taking a percentage of any recovery, typically in cases where money is being sought). You should discuss all potential costs, including attorney fees, court costs, and expert witness fees, during your initial consultation and obtain a clear written fee agreement.