If you’ve never dealt with Florida probate law, it’s natural to feel overwhelmed. The truth is though, that the average probate case is completed with very little fuss or confusion. Once in a while, though, things do get a little complicated and today we’re going to talk a bit about how this happens, what it means, and what you’re expected to do when it happens.
Florida Probate Law: When Things Get Complicated
As mentioned above, the average probate case in Florida is quite simple albeit time-consuming. Not all probate cases fit this mold, however, and once in a while, things can get a little complicated. Let’s take a look at a few examples of this type of situation…
You’re the Executor of the Estate, But No Longer Want to Serve in This Position
There are a number of reasons why you might decide that you no longer want to serve as the executor of the estate and you have the right to do that. If this is the case, you should notify the back-up executor who should have been named in the will of the deceased. You should also let the probate court know that you no longer want to serve in this position. If no backup executor was named in the will of the deceased, then the probate court will assign the job to someone who is able to carry out the responsibilities expected of them.
You Suspect That the Current Executor of the Estate is Not Fulfilling Their Duty
In some cases, you may believe that the executor of the estate is not properly fulfilling their duty or is not fulfilling their duty properly. If this is the case, you have the right to contest the current executor’s position. To do this you must formally contest the executor in probate court. Your petition should include the reasons why you are petitioning for their removal, for example, if you believe that they are mishandling the assets of the probate estate and exploiting their position as the executor. In this example, your petition should also include any evidence that supports your belief. Be sure that your reasons for believing that the current executor is unfit for their duty are legitimate reasons for removal from the position of executor.
You Want to Contest the Will of the Deceased
If you have reason to believe that the will of the deceased is inaccurate or that the deceased was not competent or was under duress at the time of the will’s creation or signing, you can contest that will in the court. To contest the validity of the will, you must file to contest it with the probate court and state your reason for the contest along with providing evidence to support your theory. Your reason for contesting the will must also be a valid reason with the courts. Currently, the following reasons are acceptible grounds for contesting a will:
- The will isn’t signed as directed by state law – for example, in the state of Florida, two witnesses must be present.
- The deceased had compromised mental capacity at the time of the will’s creation or signing and was unable to make a will or understand what they were signing.
- The deceased did not have the mental capacity to make a will.
- The deceased was unduly influenced into making a will.
- The will is fraudulent.
After filing your contest of the will with the court will take a look at your contest and will investigate the claim further. If the will is found to be invalid, it will be discarded and the estate of the deceased will be distributed according to a previous valid will if one exists. If no previous will exists, then assets of the estate will be distributed according to the states intestacy laws.
You Disagree with the Ruling of the Probate Court
There are a number of situations where you may disagree with the ruling of the probate court and when this happens you do have the right to appeal. Probate appeals are usually based on procedural or legal issues and are filed with the superior court but they must be filed within 30 days of the probate court’s decision.
To begin your appeal you will need to retain an attorney who is experienced with probate who can help you to ensure that all the necessary paperwork is filed by the required deadlines. It’s important to know, however, that an appeal on your case can be very time consuming and tie up a lot of your financial resources so it’s important to be sure that you are prepared for the process.
Need Florida Probate Law Help?
If you’re dealing with Florida probate law and need assistance from a reputable and experienced probate attorney, Weidner Law can help. Just pick up the phone and dial 727-954-8752 to set up a consultation today!