Practice Areas

Probate Litigation & Mediation

Probate disputes can be devastating to the fabric of a family. Suspicions can grow when one family member has a closer relationship with the estate holder. Perhaps a will or trust has been changed to benefit a particular child. Perhaps that person has been given power of attorney before your loved one passed and was managing the estate’s finances. Where are the assets now?

There are several grounds for contesting a decedent’s Will, including:

Mistake in Execution. Florida Statute §732.502 sets forth the execution requirements for a will to be valid in the State of Florida. If any of these provisions are not met then the document is not a valid will under Florida law.
Undue Influence. An undue influence claim challenges whether the person making the Will did so freely and without being coerced by a person who was in a position of trust and control. For example, was the decedent under the exclusive care of a person who helped procure the will? Does the will benefit that care giver?
Lack of Testamentary Capacity. A lack of capacity claim is asserted based upon the belief that at the time the Will was executed the person making the Will did not have the requisite mental ability to understand a) the amount and nature of his property; b) the family members and loved ones who would ordinary receive such property; and c) how the Will disposes of such property. For example, was the decedent under medication at the time he/she signed the will? Was the decedent suffering from dementia or Alzheimer’s at the time of signing?

In addition to will contests, probate litigation can involve:

Will/Trust Construction. Sometimes Wills and Trusts are vague; beneficiaries have died or disappeared; or the document does not properly dispose of the entire estate. In these instances, the assistance of the court is sought to determine how a decedent’s estate should be distributed.
Determination of Heirs. Sometimes a decedent leaves no will and had little contact with his family. The heirs (as defined by the intestacy statutes, Florida Statutes §732.101 - 111) need to be determined by the court. Sometimes, the decedent has formerly unacknowledged children who wish to prove paternity/maternity and make a claim in the estate.
Elective Share Litigation. The surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate. Absent a valid pre-marital agreement, a surviving spouse has the right to claim 30% of the elective estate. Florida Statute §732.2035 provides a description of the property that enters into the elective estate. The elective share is exceptionally broad: it includes pay-on-death accounts and gifts made within one year of death.
Breach of Fiduciary Duty. A person appointed by the court to administer a decedent’s estate has strict duties and responsibilities with which they are charged. Failure to properly administer an estate can be a breach of fiduciary duty. Sometimes the remedy sought is removal of the fiduciary. When funds have been wasted or mismanaged or excessive fees have been taken, the remedy can be a surcharge action. For a list of the duties and powers of the personal representative, see Florida Statute §733.601-619.
Removal of Fiduciary. A fiduciary, such as a Trustee or Personal Representative, may be removed by the court for cause.
Surcharge Action. The purpose of a surcharge against a fiduciary is to restore the losses sustained by the fiduciary’s breach of duty.
Accounting. Trust and estate beneficiaries have the right to an accounting. If one has not been provided, then a beneficiary may seek the court’s assistance to compel the fiduciary to account for the estate assets.

Experience Matters

Most probate disputes are resolved through mediation. Rarick, Beskin & Garcia Vega, P.A. has over 17 years of experience in probate and trust administration. We team with experienced probate/trust litigators for cases requiring litigation or mediation. To schedule a meeting, call (305) 556-5209 or (954) 566-1151, or email info@raricklaw.com.

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