Even the best estate planning can potentially spawn disagreements between beneficiaries, heirs, and other interested parties. The attorneys at Persante Zuroweste are knowledgeable and experienced in probate litigation, and represent those whose rights may be affected in a probate dispute.
Our lawyers can assist you with challenging an estate plan, such as a will or trust contest that was improperly procured, or with defending and upholding the decedent's wishes to protect the inheritance.
We sue personal representatives that have breached their duties, and we defend those personal representatives who have been wrongly accused of wrongdoing. Below are examples of some of the causes of action we handle:
A will contest is a formal objection challenging the validity of a will, based on the contention that the will does not reflect the true intent of the will writer (testator/testatrix). There are multiple grounds for contesting a will in Florida.
Lack of Mental Capacity:In the world of probate, a person who executes a will (the testator/testatrix) must be of “sound mind.” Testamentary capacity means the ability to understand: 1) generally the nature and extent of one’s property; 2) the relationship of those who would be the natural objects of the testator’s bounty (the testator’s family); and, 3) a general understanding of the practical effects of his or her will. If a person does not have testamentary capacity, his or her will is invalid.
Undue Influence Claims: Generally, undue influence occurs when a person exerts undue pressure over someone to execute a will leaving assets in a particular way, to make a direct gift while alive, to inherit or disinherit someone, or to sign a contract. The key element is that the influence was so great that the testator (will writer), donor (gift giver), or party to the contract had lost the ability to exercise his/her judgment and could not refuse to give in to the pressure.
Probate Fraud: A probate fraud is the intentional use of deceit, a trick, or some dishonest means to deprive the decedent, the estate, or its beneficiaries of money, property or a legal right.
Forgery and Alteration of Instruments: A forged or altered will or codicil is not a valid under the law, and may be set aside by the court.
Actions Against Personal Representative
Breach of Fiduciary Duty: The personal representative is a fiduciary to the estate and beneficiaries of the estate, and must maintain the highest duty of care in administering his or her duties. The personal representative must act honestly, honorably, and in good faith. Their actions must be completely transparent at all times. When a personal representative does not live up to those standards, he or she has breached his or her fiduciary duty to the estate and its beneficiaries.
Beneficiary Rights:After the death of a decedent, the beneficiaries of the decedent’s estate have the right to information from the personal representative. For example, beneficiaries have the right to an accounting of all activity in the estate. If a beneficiary disagrees with the way that the personal representative is managing estate funds, he or she can go to court and seek relief.
Abuse of Power of Attorney: The law allows a person (a principal) to delegate his or her personal decision-making power to another person (an agent), and that relationship is governed by a legal contract called a power of attorney. When an agent abuses his or her position, the principal has the right to seek relief.
Guardianships and Conservatorships: A guardianship is a legal relationship that gives one or more individuals or agencies the responsibility of the personal affairs of the protected person. A conservatorship is limited to the management of the property and financial affairs of a protected person.
Surcharge of Personal Representative: When a personal representative commits bad acts, the personal representative may be subject to a surcharge action, in which the personal representative is forced to pay money back to the estate.
Removal of Personal Representative: Removal of a personal representative is a drastic remedy and usually results from an intentional violation of a fiduciary duty or from other wrongful conduct, especially where the wrongful conduct is likely to continue without removal of the personal representative.
Florida Probate Litigation Terminology
What does “probate” mean?
Probate is narrowly defined as a legal process where the validity of a will is established before a state court. However, the term is now commonly used broadly to refer to the entire judicial process of estate administration.
What is the judge’s role in a probate proceeding?
Typically, a decedent will nominate a person in their will to oversee the probate process, commonly referred to as a personal representative or executor. The personal representative must then be appointed by the judge. The judge is also responsible for determining the validity of a will and supervising the administration.
What does a personal representative do?
The personal representative acts on behalf of the decedent's estate, manages the inventory and distribution of the decedent's property, and pays the decedent's debts. The personal representative must act for the best interests of interested persons, including creditors.
What if my family member died without a will?
In Florida, a will is not necessary to distribute property. If a loved one died without a valid will, the property will pass by “intestate succession.” This is the legal process where the property is distributed to the decedent’s surviving spouse and descendants in an order determined by the State of Florida.
Florida Guardianship Litigation
Probate also includes the law of guardianship. A guardianship is a legal proceeding in which a guardian is appointed to exercise the legal rights of an incapacitated person. Many times, disputes arise during the probate of a decedent’s estate or in the administration of a guardianship.
Common Probate and Guardianship Litigation Disputes
Sometimes disputes over a will cannot be resolved among family members and other beneficiaries without the assistance of an experience attorney. In probate or guardianship disputes, our attorneys represent personal representatives, trustees, guardians, beneficiaries, charities, and potential heirs to represent their interests or pursue their claims.
PersanteZuroweste is a litigation law firm that handles Estate and Trust matters across Florida. If you believe that you may need legal assistance regarding a Florida probate or trust litigation matter, please contact us at (727) 796-7666.
PersanteZuroweste has established a reputation as prominent trial lawyers serving clients throughout Florida. Our office is conveniently located to the Clearwater, St. Petersburg, and Tampa Bay communities.