How To Avoid Probate Litigation

Avoiding probate litigation is one of the major motivations for many individuals in developing their comprehensive estate plans. While you cannot control how the loved ones you leave behind will respond to the instructions left in your Last Will and Testament or other documents related to the Florida probate process, a carefully organized and detailed estate plan can help to minimize the likelihood of probate litigation, and provide the probate court with the information needed to resolve any litigation that does arise expeditiously. An experienced estate planning attorney with Loughlin Law, P.A. may be able to help you develop an approach that directly addresses your concerns regarding probate litigation. Call our office in Boca Raton at 561-559-6214 to set up a consultation.

What Is Probate?

Probate is the legal process used for arranging for the disposition of an individual’s final affairs after their death when the person has left a valid Last Will and Testament to direct that disposition. In most cases, therefore, if the deceased person has left a testamentary document (a Will), then the initial step of the probate process will likely be submitting the Will to a probate court so that the court can determine the Will’s validity and authorize the person designated in the document as the “personal representative” of the deceased person’s estate to commence the formal steps of the probate process. If the deceased individual did not leave a Last Will and Testament, or if the probate court finds the Will to be invalid, then a separate process, known as intestate succession, will be used.

Assuming that the Will is found to be valid, then the remaining steps of the process will allow for the personal representative named by the testator (the person who created the Will) to identify and discharge the deceased person’s outstanding debts, and then to distribute any remaining property to beneficiaries as designated in the Will. Depending on the complexity of the estate, the number and availability of creditors, and a variety of other factors, the probate process can take anywhere from a few months to several years.

What Is Probate Litigation?

Probate litigation occurs when someone with a legally recognized “interest” in the probate of a decedent’s estate files a legal challenge to some portion of the probate process. The most common example is probably contesting a Will, but family members may also in some cases ask a court to review the conduct of the personal representation, and in a few limited instances other parties may petition a Florida probate court to halt the distribution of assets to beneficiaries on the grounds that they are creditors of the estate with unsatisfied claims. A Florida estate planning attorney may be able to help you identify, and prepare to avoid, other possible causes for probate litigation.

Contesting the Will

One of the most common causes of probate litigation in Florida is a dispute over the legal validity of the decedent’s (the deceased person’s) Will. Most Florida testators take substantial pains to ensure that the documents they craft will not only accurately express their wishes, but also meet the validity requirements set out under Fla. Rev. Stat. § 732.502 (2024). However, there can be a few ways family members may still challenge a Will in court.

Some of these include:

• Alleging that the Will submitted to probate has been forged or altered contrary to the testator’s wishes
• Alleging that the Will was signed under duress or “undue influence”
• Alleging that there is a more recent Will that specifies provisions different from those in the version admitted to probate

Undue influence is notoriously difficult to prove, but courts faced with allegations that a Will was formed under conditions that may have subverted the true wishes or judgment of the testator will generally look to see whether the Will being contested substantially advantages one party (usually the party alleged to have exercised undue influence); a Florida judge may also examine the evidence presented to ascertain whether the contested Will represents a substantial change, not otherwise explained, from previous versions of the testator’s estate plans. Allegations of forgery, or the production of a Will that is alleged to be more recent, will typically be subject to the same kinds of scrutiny normally applied to determine the validity of any Last Will and Testament under Florida law.

Removing the Personal Representative

If a Florida probate court becomes aware that the personal representative of an estate is not legally qualified to serve in that position, the judge may order the personal representative’s removal. In addition, any “interested person” (usually someone who stands to inherit some portion of the estate) may petition the court to remove a personal representative if the petitioner believes that the personal representative is not qualified, or is not carrying out his or her duties appropriately. Specific causes for which the personal representative may be removed are enumerated under Fla. Rev. Stat. § 733.506 (2024).

While petitions to remove a personal representative are not particularly common, they can nonetheless be unpleasant for all involved, and so unsurprisingly many individuals will try to limit the likelihood of this type of probate litigation. A Florida estate planning attorney with Loughlin Law, P.A. may be able to provide you with guidance regarding the appointment of a personal representative in your estate plan.

Creditors’ Claims

Settling the claims any creditors may have against the estate is an essential part of the process. The legal requirements for a formal notice to creditors are laid out in Fla. Rev. Stat. § 733.2121 (2024).

Florida law prohibits creditors from filing claims against an estate after the time window specified in Fla. Rev. Stat. § 733.702 (2024) has passed under most circumstances, so probate litigation arising from creditors’ claims is comparatively rare. In the event that it does arise, however, it can be an enormously stressful experience for grieving loved ones, and can also significantly delay the delivery of bequests to beneficiaries as directed in the decedent’s Will.

Key Strategies for Avoiding Probate Litigation

There are three core strategies that individuals can employ in developing their estate plans in order to minimize the chances of probate litigation relating to the administration of their estate. For the most part, these strategies all have in common an emphasis on clarity, thoroughness, and precision in the estate planning documents that will be used to guide the probate process. Securing these qualities in a Last Will and Testament and any supporting estate planning tools is a major reason why many Florida residents choose to develop their estate plans with the assistance of an experienced attorney in their area.

1. Ensuring Legal Validity

One of the most important things you can do to avoid probate litigation is to make sure that the legal validity of your Last Will and Testament, along with that of any related estate planning documents, is airtight. Challenges to the Will are generally challenges to its validity: allegations that the Will presented for probate is out of date, that it was created under conditions that raise questions about whether the testator drafted and signed it of his or her own free will, even suggestions that the document presented may have been fraudulently created and submitted to the court.

While there is very little you as an estate planner can do to prevent anyone from initiating such a challenge after your death, taking steps to ensure that the Will is properly attested and witnessed can help to diminish the potential for these challenges to develop into a protracted legal battle. Updating the Will regularly can also make it more difficult for any of the family members you leave behind to argue over whether the document has been superseded by a more recent version. An estate planning lawyer with Loughlin Law, P.A. may be able to advise you on additional strategies tailored to your circumstances.

2. Ensuring Clarity of Instructions

Just as you cannot prevent a loved one from attempting to challenge your Will, you cannot remove all possibility that someone may question whether the individual you have designated to act as the personal representative of your estate is discharging his or her duties appropriately. You can, however, protect both the fulfillment of your own wishes and your personal representative’s peace of mind by outlining the instructions this person is to follow in carrying out the distribution of property and administration of your final affairs with clarity and precision.

Detailed, unambiguous instructions explicitly directing how the personal representative is to distribute property among your beneficiaries can go a long way toward making it easy for a probate court to recognize when a complaint against a personal representative lacks merit, and dismiss the suit accordingly. Using care in the selection of a personal representative can also be an important and integral part of the process; many estate planning attorneys will advise their clients to discuss their wishes with the individual they designate as a personal representative. You may also wish to sit down together to review the responsibilities of a personal representative – and the legal causes specified for their removal – established under Florida law.

3. Thorough Record-keeping

After your death, the person you have identified in your Will as the personal representative of your estate will be responsible for reviewing all of your financial accounts, identifying any debts you have remaining at the time of your death, and discharging your obligations to any creditors who come forward to present their claims under Fla. Rev. Stat. § 733.2121 (2024). Generally speaking, most creditors want to be found and paid, so this part of the probate process can be tedious but is not normally expected to be difficult. A major consideration in how time-consuming or demanding your personal representative’s task may be, however, is the thoroughness and timeliness of your records.

To reduce the likelihood of probate litigation arising from a dispute over creditors’ claims on your estate, maintain copies of all of your financial statements, and any documents related to debts such as credit card balances, home or other property mortgages, and auto loans. Consider setting up a folder or other storage system for organizing documents related to your finances, and including a brief note for your personal representative, summarizing the contents. Update the note periodically, as well as any time a debt is paid off or a major expense or windfall substantially shifts the balance sheet in your personal accounting.

Speak With a Florida Probate Lawyer

Developing an estate plan can be challenging for many people. Particularly when an individual is attempting to tailor their estate planning to avoid probate litigation, deciding on a set of estate planning documents to serve this purpose can be frustrating and even confusing for anyone not accustomed to navigating the requirements of Florida probate law. An estate planning attorney can often serve as a guide to the estate planning process – listening to your concerns, presenting options that may address them, and helping you to evaluate the pros and cons of each one. Consider scheduling a consultation with Loughlin Law, P.A. to review your personalized estate planning needs. Call our office today at 561-559-6214 to find a time.