How Probate Confirms the Validity Of A Will
According to the Florida Bar, probate can take longer in situations where parties challenge or “contest” the validity of wills. Absent these challenges, the probate court must still “prove” the will before enforcing it. In other words, the court must determine whether the testator (the person who created the document) followed all the necessary steps and procedures. In this way, the probate court plays an important role in Florida society. Without it, families would be vulnerable to various types of fraud and forgery.
How exactly does the probate court confirm the validity of a will? What can a family member do if they believe that a will passing through probate is fraudulent? The answers may depend on the unique circumstances of each family. Concerned individuals may want to discuss their circumstances with an experienced probate lawyer in Florida. Continue this discussion by contacting Loughlin Law, P.A. at (561) 677-8384.
To Probate a Will is to “Prove” a Will
The word “probate” stems from the Latin verb “probare” (to prove). In other words, “probating a will” is just another way of saying “proving a will.” The probate court is responsible for proving the validity of a will, and this step occurs before anyone is allowed to follow the instructions contained in the document. The Florida Bar states that the probate court must prove the validity of a will before it becomes “effective to dispose of property.” Until this process is complete, no one can inherit any property from the estate of the decedent (the person who passed away).
When Might the Probate Court Reject a Will in Florida?
The probate court might find that a will is invalid for various reasons. First, only wills made in writing are valid in Florida. The will must also include the signature of the testator. As with all legal documents, a person must be able to understand what they are signing. If they do not, then their signature (and the will itself) is invalid. This issue generally involves mental incapacitation, such as dementia. A will must also contain the signatures of two witnesses, made in the presence of the testator. Mental incapacitation of either witness can invalidate the will as well.
The probate court might also reject a will if there are any signs of forgery or fraud. For example, a family member might create a fake will in an attempt to inherit all of the assets, which might contain a forged signature. The court might discover evidence of coercion or trickery. For example, a caretaker might have tricked an elderly nursing home patient into signing a fraudulent will. To learn more about the various issues that may invalidate a will, consider contacting Loughlin Law, P.A.
When is a Will “Self-Proving” in Florida?
Testators can choose to create “self-proving” wills in Florida. A self-proving affidavit is a statement added to the end of a will. With this statement, the testator attests to the validity of the will. This statement must be notarized. In other words, the testator must add a signature to this affidavit in front of a notary. The notary then adds their signature, and the two witnesses also sign the affidavit. If the testator follows these steps, the resulting will is “self-proving.” The probate court will likely be much more willing to accept the validity of a self-proving will.
What Happens if I Do Not Create a Self-Proving Will in Florida?
If a testator fails to create a self-proving will, the process of authenticating the will could be more time-consuming for their family members and personal representative. Without the self-proving affidavit, the probate court must take additional steps to determine whether the will is valid. As a result, the court must call the witnesses to the will to court. These witnesses must then testify that the will is valid. This can be a time-consuming process, and it will likely lead to additional costs for the family estate.
What if Someone Challenges the Validity of the Will?
If someone challenges the validity of a will, the court may be obliged to review these allegations. A person can only “contest” a will under certain circumstances. First, they must be an “interested person.” These include creditors, family members, and beneficiaries. Second, they must have legal grounds to challenge the will. For example, they might allege that the testator was mentally incapacitated when they signed their will. They might also allege that the testator was pressured by “undue influence” when they signed the document. An interested person could argue that the signature is a forgery.
These challenges can lead to “probate litigation” in Florida. In other words, the probate process will shift into something that represents a full-on lawsuit. Instead of merely “checking the boxes” and distributing assets to beneficiaries, the probate court will need to go through various legal processes in order to determine the truth of the allegations. The court might call upon witnesses, review evidence, and hear oral arguments from both sides. This is obviously something that families should strive to avoid if possible. Probate litigation not only makes the overall process more time-consuming but also much more expensive. Probate litigation can eat away at the inheritance of beneficiaries.
Learn More About Probate With Loughlin Law, P.A.
While probate helps families by confirming the validity of wills, it can also be a tiresome and expensive process. Many families have no concerns about potential fraud or forgery, and they may wish to navigate this process as quickly and as efficiently as possible. Alternatively, families may face false allegations of fraud by beneficiaries who wish to pursue a greater share of the assets. Often, these family members are disinherited. Testators may wish to prevent these issues by circumventing probate as much as possible. They may accomplish this goal with strategies involving trusts, beneficiary designations, and joint tenancy. Those who have already lost loved ones may wish to contact experienced probate lawyers in Florida to learn more about the process ahead. Guidance from an attorney could be particularly important for those who have concerns about potential fraud. Expand on this conversation by contacting Loughlin Law, P.A. at (561) 677-8384.
