Probate & Trust Litigation

What is estate litigation?

People generally don't engage in litigation over a small estate, but instead probate and trust litigation involves large estates, which inherently are more prone to probate or trust litigation. When litigation ensues in regards to a will or a trust, it generally takes two forms. It can be a challenge to the estate planning document itself such as whether a will should be admitted to probate. Or, it can be a challenge with the administration of the estate such as who will serve as a personal representative or a trustee.

Probate is the court-supervised administration of a decedent's estate, which begins with proving the will. The process was established by state law to transfer assets from the decedent's names to his or her beneficiaries. The will is the document that is written and signed by the deceased; this document specifies how the property is to be distributed among the beneficiaries.

A will contest is a formal objection that is raised against the validity of a will. This objection is based on the contention that the will does not reflect the testator's (person who made the will) actual wishes. Often times a will contest will argue that the testator lacked testamentary capacity or was under undue influence, or was the subject of fraud.

The person who challenges the will is often referred to as the "contestant" and the contestant can challenge the will in its entirety or in part. Those who have legal standing to contest a will are those named in the face of the will and those who stand to inherit from the testator if the will is proven invalid. Such individuals would usually benefit under Florida's intestate succession laws, which take effect when someone dies without a will.