Posted By Larry Tolchinsky on October 21, 2010
More often than not, the probate process is simple and straightforward. Where the decedent executed a Will, his property is disposed of in accordance with it. Where there is no Will, his property passes to his spouse and/ or children. Sometimes, however, there are complications; for example, the decedent may have disinherited his spouse in his Will or an alleged biological child may pop out of the woodwork. Alternatively, a creditor may bring a disputable claim against the estate for a vast sum of money. Where there is controversy, litigation becomes likely.
Below are some examples of issues that may give rise to probate litigation:
- Will Contest: A party may allege that the deceased person’s Will was not executed with the requisite formalities and is thus invalid, or that he lacked the capacity to execute the Will or was unduly influenced into disposing his property as stated in his Will.
- Personal Representative’s Breach of Duties: The PR of an estate owes its beneficiaries the fiduciary duties of honesty, prudence and loyalty. When those duties are violated, the beneficiaries may petition the court to remove the PR and/ or to compensate the estate for any financial loss suffered due to the wrongdoing of the PR.
- Elective Share: In FL, the decedent’s surviving spouse is guaranteed a certain portion of his estate, which is calculated according to a detailed formula. If she is displeased with the inheritance created by the estate plan, she can instead take her elective share. The surviving spouse must make her election within 6 months of her receipt of the PR’s Notice of Administration.