Probate is the process by which an estate’s property is transferred to its creditors and beneficiaries. If the deceased left a Will, and it’s determined to be valid, the assets will be distributed according to the Will. If the deceased died without a Will, the Will cannot be located or is determined to be invalid then there are probate laws that determine how the estate will be distributed.

Some areas of probate litigation include challenging the contents of a Last Will and Testament, challenging a provision in a Will or challenging the appointment of a Personal Representative of the Estate. In many of these cases, a Probate Lawyer may be required to assist with the challenges presented.

Lack of Mental Capacity

Lack of Mental Capacity or Lack of Testamentary Capacity can be claimed when there is a belief that the person making the Will did not have the ability to understand how a Will distributes their assets, who would usually be the beneficiaries of their Will or if they didn’t understand the amount of their assets. Dementia, brain injury, mental illness and certain medications can all cause a person to lack the capacity to understand their Will.

Undue Influence and Duress

An undue influence claim can help to determine if the person making the Will was coerced by someone who was taking advantage of the decedent. Some examples of relationships that can lead to a trusted person having undue influence are parent/child, doctor/patient or a priest/member of parish relationship.

Duress is when a threat is made that compels a person to do something against their better judgment. It can be a threat of physical injury, or some kind of economic or monetary threat. Duress can also be a threat of some kind of social influence, for instance, threatening to tell people something the decedent didn’t want known.

Improper Signing of a Will

In the State of Florida, a Will must be signed by the decedent and two witnesses. The two witnesses must sign the Will in the presence of the now deceased and in the presence of each other. If it is determined that the Will was not properly signed, it will be found to be invalid.

Breach of Fiduciary Duty

The person appointed by the court to serve as the Personal Representative of the Estate has many duties and responsibilities. If they are not performing their duties, they can be challenged to step down and in some cases even be responsible for any funds that have been mismanaged or wasted.

There are many instances when a Florida Probate Attorney may be necessary. Florida Probate Law can be very complicated and an attorney that specializes in probate litigation can help you to understand your rights and responsibilities.

This article is for informational purposes and does not constitute legal advice. Please contact an attorney in your local area for more information about Probate Law in Florida.