Are You Considering Contesting a Will in Florida?

Estate planning, wills and probate

Attorney Raleigh W. (“Billy”) Greene, IV

Make sure you file a Caveat to protect yourself. Deciding whether or not to contest a loved one’s will is understandably a very difficult decision to make. Wills are most commonly contested either due to a testator’s (person executing the will) mental incapacity or because a third-party exerted undue influence over the testator near the time the will was executed.

Often potential clients suspect foul play when their parent or loved one changes their estate planning late in life, but they decide to hold off researching their options until they have had sufficient time to mourn their loss. The hard reality, however, is that any delay could put a client at a disadvantage should they ever pursue legal action.

The beneficiaries under a questionable will often begin advancing their claims immediately after the testator passes away. If this unscrupulous individual is also nominated as the personal representative under the new will, which is usually the case, then that individual has the ability to open a probate estate on behalf of the testator.

The method used to open a probate estate is to file a document called a Petition for Administration. If the Court has no reason to suspect that a will contest is being considered, then the Court will appoint a personal representative and that individual would then be empowered to act on behalf of the testator’s estate. One of the main concerns in allowing this appointment to happen is that once an individual is named personal representative of an estate, they have the ability to use estate funds to defend any legal action brought against the estate. This can put a potential will contestant at a serious financial disadvantage in a will contest.

probate estate and will litigation

File a Caveat with the Court

So what can you do to protect yourself? The Florida Probate Code allows any interested party, who is “apprehensive” about a testator’s estate, to file a Caveat with the Court. A Caveat basically puts the Court on notice that there are questions surrounding a testator’s Last Will and Testament. As long as the Caveator is not merely a creditor of the estate, a Caveat can be filed either before or after the testator’s death.

Once a Caveat is filed, the Court will not appoint a personal representative of an estate until the Caveator has been given formal notice of the proceedings. Upon receiving formal notice, the Caveator has twenty (20) days to file an objection or competing petition. By filing the Caveat, a Caveator ensures that their potential adversary will not have access to estate funds for purposes of litigation. As discussed above, precluding the opposing party from using estate funds ensures that the competing parties will begin a will contest on equal footing. .

It is also important to keep in mind that there are certain formal requirements when executing a Caveat, so please consult a probate attorney to ensure your Caveat is valid and effectual under the law. 

Baskin Fleece handles all aspects of probate administration and probate litigation. To schedule an appointment with a BaskinFleece attorney, call (727) 572-4545. For more information about BaskinFleece, visit http://www.BaskinFleece.com.

 

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