The passing of a loved one can become more complicated if their estate is in question. Through the legal process of probate, the court supervises the organizing and transferring of your loved one’s assets, but even this formal procedure can have many complications. You or someone else in your family may have contentions about the decedent’s will. You may also find that creditors, trustees, and other parties have a financial stake in the estate.
If you are affected in any way by probate proceedings, you should take steps to protect your rights. In Florida, talk to Attorney Tamera Boudreau of The Boudreau Firm. She has over 20 years of experience helping individuals, families, and businesses settle their disputes, obtaining favorable outcomes for her clients. A skilled litigator, she can advocate for you in probate litigation, contested wills, and other estate disputes.
Contact The Boudreau Firm today at (727) 390-7614.
What To Do If You Received a Notice of Administration
A Notice of Administration is a formal document from the personal representative of the estate, called the Executor, alerting all interested parties about the decedent’s death. The notice also informs them of the filing of a will for probate and reminds them that they must commence any claim within a certain period, usually 20 days.
It’s wise to get the help of a probate lawyer as soon as you receive a Notice of Administration. You have a limited time to file your claim in court or to dispute the decedent’s will. Failing to file in time means you have waived your rights to make a claim. This is true even if the executor has promised you that things will “even out” after the proceedings.
Grounds for Contesting a Will in Florida
These are the three most common grounds for contesting a decedent’s will:
- Mistake in execution. Florida Statutes Section 732.502 outlines the requirements for a will to be valid. The will must: 1) be in writing; 2) be signed by the testator (maker of the will) in the presence of two witnesses; 3) be acknowledged by the testator in the presence of two witnesses; and 4) be signed by the two witnesses in the presence of each other and the testator. If any of these provisions are not met, the document could become invalid.
- Undue influence. You may challenge the validity of a will if you can show that the decedent did not write it voluntarily, freely, and without coercion. Unfortunately, it is common for will-makers, especially elders, to be coerced by a person they trust, such as a relative or a caregiver.
- Lack of testamentary capacity. This claim is based on the belief that at the time of the will’s execution, the will-maker did not have sufficient mental ability to understand the meaning of their action. For example, they might not have understood the amount of their property and how the will disposes of it.
Note that a person’s general competency doesn’t automatically indicate their testamentary capacity. A person who has occasional failing memory or irrational behavior may still have the requisite testamentary capacity to create a will during their lucid periods.
If you are contesting a will based on this ground, the burden of proof is on you to show that the testator did not have testamentary capacity during the creation or signing of the will.
How The Boudreau Firm Can Help
Please get in touch with The Boudreau Firm if you need assistance with any of the following probate litigation matters.
Improper Will Construction
We’ve often encountered wills that are ambiguous or fail to properly dispose of the entire estate. In some cases, beneficiaries have died or disappeared. In these instances, the court may step in to determine how the decedent’s estate should be disposed of and distributed. We advocate for our clients’ rights and entitlements throughout the process.
Determination of Heirs
If a decedent left no will and had little contact with their family, the court will determine the heirs. Having a lawyer is indispensable to assert your claim in this case. Unacknowledged children who wish to prove paternity/maternity can also attempt to claim an estate.
Elective Share Litigation
The surviving spouse of a person who dies while residing in Florida has the right to 30% of the estate, regardless of what’s in the decedent’s will. One major exception to this is if the couple had a prenuptial agreement waiving this elective share. The elective share is the subject of many contentious disputes. Attorney Tamera Boudreau has the skill and experience to protect you in these cases.
Breach of Fiduciary Duty
The court-appointed personal representative who administers the decedent’s estate has the duty to strictly comply with Florida fiduciary law during probate. Failure to properly administer an estate, either by overt act or by omission, can give rise to legal actions. Interested parties may seek to remove the fiduciary or to have them pay a surcharge if they mismanaged funds or took excessive fees.
Undue Influence/Elder Financial Exploitation
At The Boudreau Firm, we diligently protect families against parties who exploit elders for their wills. A will or trust can become invalid if the elder was under undue influence from a family member, friend, caregiver, or advisor. If you are raising this challenge, the court will conduct an undue influence analysis, and we can help you meet the court’s criteria.
Accounting
Beneficiaries have the right to an accounting. If one has not been provided, you may seek the court’s assistance to compel the fiduciary to account for the estate assets. If accounting has been provided and is objectionable for any reason, you may also raise an objection with the court. Florida law sets deadlines for accounting or inventory objections. Speak with The Boudreau Firm as soon as you have a concern.
Contact a Tampa & Saint Petersburg Wills & Probate Lawyer
Attorney Tamera Boudreau has a 20-year track record in business and financial litigation. Her extensive experience is an advantage to her clients in contested wills and probate dispute cases. Through her boutique firm, The Boudreau Firm, Ms. Boudreau provides personalized service to each individual or family she works with, translating their complex situation into a specific solution.
The Boudreau Firm is based in St. Petersburg, Florida, and serves Tampa Bay, Clearwater, Pinellas County, Hillsborough County, Manatee County, Sarasota County, Hernando County, Pasco County, and beyond.
Contact The Boudreau Firm today at (727) 390-7614 to schedule a consultation.