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In Florida, probate estates are created when someone passes away. At that time, and after a petition is filed, a “Personal Representative” is appointed by the Florida probate judge to oversee distribution of the property held by the estate to the heirs and beneficiaries after the creditors have been paid.

Anyone who has a reasonable expectation that they will be impacted by the administration of a decedent’s estate is considered to be an “interested person” of that estate. They have rights that they can pursue – including the right to file a will contest or to sue the personal representative for breach of his or her fiduciary duty.


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Interested Persons Have Standing To Challenge a Florida Will in Probate Court

Legal Definition of Interested Person in Florida Statute

Florida Statute § 731.201(23) defines an “interested person” as: “… any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.”

It is a definition that is intentionally broad. Why? It is written to cover more than the named beneficiaries or the surviving spouse. For instance, the personal representative of the estate as well as a trustee of a trust are also considered to be an interested person. See, Florida Statute § 731.201(23).

So who else is covered by this legal term?

It is not a cut and dry determination. When determining who is an interested person in a Florida Estate the answer depends upon the purpose of the proceedings involved and the subject matter that is at issue.

How Do You Know If You Are An Interested Person in a Florida Estate?

Beneficiaries to an estate usually learn they have been named in the decedent’s Last Will and Testament from a Notice of Administration that they receive from the estate’s personal representative. Under Florida Statute 733.212, the personal representative is legally required to find the people named in the will and give them notice that they are beneficiaries of the estate. The surviving spouse is also legally required to receive a Notice of Administration, as are all other interested persons.

So, the easy answer to this question is, you will know if you are an interested person to a Florida Estate because you will receive a Notice of Administration letting you know that the personal representative considers you to be one.

Is Notice The Final Answer?

However, if you are not given an official Notice of Administration by the Personal Representative, this does not mean that you are not an interested person to the estate. It means that the personal representative has failed to consider you as interested, or has made a determination that you are not qualified to be one.

This does not mean that this is true. The Personal Representative can be wrong.

Filing a Petition with the Probate Court

If you believe that you are an interested person to a Florida Estate but you did not receive a Notice of Administration, then you may need to hire a probate lawyer and file your own proceeding in the probate court to assert your claim and your rights.

For instance, under Florida Statute 733.105(1)(b), you can file for a determination of “the beneficiaries or their shares” when there is “doubt about” the “shares and amounts that any person is entitled to receive” as an “interested person.” This is a lawsuit that is filed in the probate court as part of the estate’s administration.

Can an Interested Person Be Blocked From Challenging a Will or Be Disinherited by the Decedent?

Just because someone believes that they meets the definition of “interested person” does not mean that they are guaranteed to receive property in the distribution of the estate’s assets. An otherwise valid “interested person” can be disinherited, for example, and be legally barred from getting anything from the estate.

The Case of the Disinherited Son Who Wasn’t An Interested Party

In the case of Newman v. Newman, 766 So. 2d 1091 (Fla. Dist. Ct. App. 5th Dist. 2000), the decedent died after finalizing two different wills. The first will left his son only one dollar; the second will left him nothing. When the son tried to establish his standing in the probate matter as an “interested person,” so he could file a will contest regarding the newer will, he failed. The court held that he was not able to be considered an “interested person” because the first will had never been shown to be invalid and in that will, he was cut out of an inheritance by his father.

Here’s what happened.

Arthur M. Newman, Jr. (”AM”) was married to his second wife, Ethel, when he died. They didn’t have any children together, but AM did have a son from a previous marriage, Arthur M. Newman III (”Arthur”). AM died in June 1997, and his widow Ethel (91 years old at the time) filed his will for probate.

This was his second will, dated August 1962, It named Ethel as his personal representative and left all of his estate to her, as his wife. This will also provided that if Ethel should have died before AM, then his estate would be distributed 50% to his wife’s children and 50% to his son Arthur.

This second will, leaving all to Ethel, was admitted to probate. Arthur filed a will contest challenging the will, arguing that it was a forgery. Ethel defended the will against Arthur’s challenge.

Sadly, Ethel passed away in the midst of this litigation. Her successor personal representative filed a summary judgment motion with the probate court, arguing that Arthur had no evidence that there was a forgery here. All Arthur had was an opinion given by a handwriting expert he had hired. Meanwhile, Ethel had filed the attorney’s affidavit who had prepared the contested will, swearing that it conformed to AM’s wishes.

Arthur countered not only by filing affidavits of his son (Arthur IV) and his grandson (Arthur V) but AM’s brother, all giving their opinion that the will didn’t represent AM’s wishes and that the signature wasn’t his.

Arthur also filed a Motion to Determine Beneficiaries, arguing that he was an interested person in the estate, and that because Ethel had died before the estate had been distributed, Arthur along with Arthur IV and Arthur V should be considered interested persons and beneficiaries of the estate.

The probate court did not agree with Arthur. Neither did the reviewing court when he appealed that decision.  According to the court,

1. It was found that Arthur had intentionally and without good cause delayed the estate’s distribution until Ethel died. The trial court judge ruled that Arthur had “delayed matters for almost two years in the hopes that his step-mother, Ethel Newman, who was 91 years of age when her husband, the decedent, died would not survive the will contest and the petitioner then could claim one-half of the estate under the terms of the 1962 will if Ethel Newman died prior to the distribution of said estate.”

2. The court also found that Arthur lacked standing to come before the probate court in the first place because he was not an interested person as that is defined in Florida law. Arthur never challenged his father’s first will, and he acknowledged it as being genuine as he was discrediting the second will as a forgery. While “any interested person” may bring a will contest in Florida, Arthur didn’t meet this definition.

Why not? His father had disinherited him in that first will. AM left his son a single dollar in that first will. This is considered a means of disinheritance in Florida law, to leave someone only a “de minimis interest.”

Since Arthur failed to meet his burden to show that his father’s first will, which disinherited him, was invalid he wasn’t an interested person in the subsequent will. (If he had won a will contest and had the subsequent will thrown out, that first will would have gone into effect and under its terms, he would only get one dollar.)

The Case of the Contesting Son Who Was an Interested Party

Just because one son in one probate controversy would not be considered an interested party to that probate proceeding because he wasn’t a direct beneficiary named in the will doesn’t mean that this will be true in a similar situation. Each case must be considered based upon its own circumstances in order to determine if the “interested person” definition applies.

For instance, if a father sets up his will so that two testamentary trusts are created, then places his wife in the position of personal representative and the person who holds a life estate interest in his property, then his son is not named as a direct beneficiary. The estate has been designed so the property isn’t broken apart and distributed at the father’s death. The widow is protected.

This son isn’t named in the will just like Arthur wasn’t named in the will. That doesn’t mean that Arthur’s case controls.

The Watkins Will Contest

In the case of In re Estate of Watkins, 572 So. 2d 1014 (Fla. Dist. Ct. App. 1991), there was another nasty and acrimonious family fight in the probate courts. Here, a son challenged his mother who was acting as the personal representative of her dead husband’s estate, in accordance with the directive in his Last Will and Testament.

The son claimed his mother committed fraud and stole money out of the trust principal (of the trust set up by the will). According to the son, his mother had unduly influenced his father in order to get the Last Will and Testament that favored her. Under this will, she got income for life and when she died the trust principal and income would be distributed to her descendants, of which this son and contestant was one.

After his father’s death, the son argued that she had spent so much money that she had exceed the income payments and dipped into the trust principal. Oh, and the son also argued that she had breached her fiduciary duty as personal representative of the estate, too.

The mother fought back.

Her first argument was that her son was not an “interested person” with standing to get the will revoked. Why? The will had a lapse provision in it, and her son’s interest was merely a contingent interest in the property since she owned the life estate.

The appellate court did not agree with her. It agreed with the son.

According to the reviewing court, the son is an “interested party” to the probate and can challenge the actions of the personal representative. Even though the son did have a contingent interest in the trusts, and his interest might never “vest in possession or enjoyment,” as the mother had argued, the son’s contingent interest was “vested” legally.

The son did have a legal interest in the property which was reasonably expected to be impacted by improper administration of the estate by the personal representative. The legal definition of “interested person” as provided in the Florida Probate Code had been met by the son.

Questions or Concerns About Inheritance in a Florida Estate?

If you or a loved one are concerned that you may have rights to property being administered in a Florida probate proceeding, then you need to investigate whether or not you have a legal right to challenge the estate’s administration as well as to inherit from the estate. Every fact pattern is different requiring independent consideration of the issues.

You may or may not be considered an interested party by the personal representative and may or may not receive a Notice of Administration. That fact alone is not determinative of your status.  You may need to seek the help of the Florida Probate Court to answer that question.

A good piece of advice if you are faced with these issues, is to at least talk with a Florida probate lawyer to learn about your rights. Most probate lawyers, like Larry Tolchinsky, offer a free initial consultation (either over phone or in person, whichever you prefer) to answer your questions.


Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.



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