Probate Litigation Counsel for Doral Families and Fiduciaries

Probate Litigation Attorney Doral: Florida Deadlines for Will and Estate Disputes

A probate litigation attorney in Doral helps people resolve court disputes over a Florida estate. These disputes include will contests, disagreements with a personal representative, and claims against estate assets. Florida sets short deadlines, so the first weeks after you learn of a dispute matter.

Trust Counsel, PL focuses on probate litigation and trust litigation. The firm’s office is in Coral Gables, and we serve clients in Doral. Leslie V. Marenco is the attorney responsible for this page.

What does a probate litigation attorney do?

A probate litigation attorney represents people who challenge or defend how an estate is handled in court. Trust Counsel’s attorneys can serve individually as trustee or personal representative. The firm advises and represents trustees, personal representatives and beneficiaries.

Florida’s office that runs an estate is the personal representative (often called an executor). Heirs and beneficiaries may disagree with that person’s choices. Family members and creditors may also disagree.

How long do you have to object to a will in Florida?

You generally have three months after you are served a notice of administration to object to a will, but the objection must be filed no later than the earlier of the entry of an order of final discharge of the personal representative or 1 year after service of the notice of administration. After that, an objection to the validity of the will, the venue, or the court’s jurisdiction is forever barred under Fla. Stat. § 733.212.

The statute says an interested person must object to the validity of the will, the venue, or the court’s jurisdiction. The objection must be filed by petition or other pleading under the Florida Probate Rules. The deadline runs three months from the date the notice is served on that person.

The three-month period can be extended only for estoppel based on a misstatement by the personal representative about the deadline. It cannot be extended for other reasons, including misconduct by the personal representative. Unless sooner barred, objections must be filed no later than the earlier of the entry of an order of final discharge of the personal representative or 1 year after service of the notice of administration (Fla. Stat. § 733.212). Objections that challenge the validity of a will, the venue, or the court’s jurisdiction must be filed no later than the earlier of a final discharge order for the personal representative or one year after the notice of administration is served. Fla. Stat. § 733.212 reads: “(d) That persons who may be entitled to exempt property under s. 732.402 will be deemed to have waived their rights to claim that property as exempt property unless a petition for determination of exempt property is filed by such persons or on their behalf on or before the later of the date that is 4 months after the date of service of a copy of the notice of administration on such persons or the date that is 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of the will or involving any other matter affecting any part of the exempt property.” The exempt-property deadline in Fla. Stat. § 733.212 is a separate rule and does not set the deadline for objecting to a will.

Because the clock starts at service, check the date on any notice you receive. Do not wait for a second letter.

What must you prove in a Florida will contest?

In a will contest, the contestant must prove the grounds for challenging the will. The will’s proponent must first show that the will was formally executed and attested. That burden is set by Fla. Stat. § 733.107.

A self-proving affidavit or an attesting witness’s oath is admissible. It establishes the formal execution and attestation of the will at first. After that, the contestant must establish the grounds for opposing probate.

Undue influence is one such ground. Under the same statute, a presumption of undue influence applies in certain transactions and shifts the burden of proof. The statute says the presumption works against abuse of fiduciary or confidential relationships.

Under Fla. Stat. § 732.5165, a will is void if its execution is procured by fraud, duress, mistake, or undue influence, and any part procured that way is void. The rest of the will stays valid if it is not invalid for other reasons.

Fla. Stat. § 732.518 provides that an action to contest the validity of a will may not be commenced before the testator’s death.

What is the creditor claim deadline in Florida?

A creditor’s claim binds the estate only if it is filed in the probate proceeding on time. For claims against a decedent’s estate, a claim is binding on the estate only if it is filed in the probate proceeding on or before the later of the date that is 3 months after the first publication of the notice to creditors or, for a creditor required to be served with a copy of the notice, 30 days after the date of service on that creditor (Fla. Stat. § 733.702). Under Florida law, a claim against the estate must be filed in the probate proceeding on or before the later of the following dates: 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor. If the claim is not barred by § 733.710, Fla. Stat. § 733.702 provides that a creditor’s claim against the decedent’s estate is not binding on the estate, the personal representative or any beneficiary unless it is filed in the probate proceeding on or before the later of 3 months after the first publication of the notice to creditors or, for a creditor who must be served with a copy of that notice, 30 days after service on that creditor. The statute has exceptions. The personal representative may settle a claim in full without it being filed when the interested persons approve the settlement. The filing requirement also does not affect a proceeding to enforce a mortgage, security interest or other lien on the decedent’s property. Nor does it affect a proceeding to establish liability protected by casualty insurance, up to the limits of that coverage. Finally, it does not prevent a cross-claim or counterclaim in an action the estate brings, although recovery on that claim cannot exceed the estate’s recovery in that action. Fla. Stat. § 733.702 reads: “If not barred by s. 733.710, no claim or demand against the decedent’s estate that arose before the death of the decedent, including claims of the state and any of its political subdivisions, even if the claims are unmatured, contingent, or unliquidated; no claim for funeral or burial expenses; no claim for personal property in the possession of the personal representative; and no claim for damages, including, but not limited to.”

A claim not filed on time is barred, even if no one objects. Fla. Stat. § 733.702 reads: “unless filed in the probate proceeding on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor, even though the personal representative has recognized the claim or demand by paying a part of it or interest on it or otherwise.” The court can extend the time only on grounds of fraud, estoppel, or insufficient notice of the claims period. Fla. Stat. § 733.702 reads: “No independent action or declaratory action may be brought upon a claim which was not timely filed unless an extension has been granted by the court.”

For Miami-Dade filings, see the Miami-Dade Clerk of Court’s probate page.

How do trust contests differ from will contests?

Trust contests have their own timing rules. A contest to a revocable trust cannot start until the trust becomes irrevocable by its terms or by the settlor’s death.

An action to contest the validity of a trust that was revocable at the settlor’s death is barred if not commenced within the earlier of: (1) the time provided in chapter 95; or (2) six months after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust’s existence, of the trustee’s name and address, and of the time allowed for commencing a proceeding.

Removal of a personal representative

A personal representative can be removed for several causes. The causes are listed in Fla. Stat. § 733.504.

Talk with a probate litigation attorney: we serve clients in Doral

If a notice of administration just arrived and you doubt the will, you may have a short window to respond, so call Trust Counsel, PL today. Call (305) 707-7126 or schedule online. The first consultation is free, confidential, and carries no obligation to continue.

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