Probate Litigation Representation for Heirs, Beneficiaries and Fiduciaries

A probate litigation attorney helps when a dispute arises during a probate estate. That can mean a will challenge, a complaint about a personal representative, or a claim by an heir or creditor. What happens depends on the will or trust, Florida law and the facts of each case.

Probate Litigation in Orlando: What This Service Covers

A probate litigation attorney advises or represents people in contested estate matters. Trust Counsel, PL is a Coral Gables practice that focuses on trusts and estates law in Florida. We serve clients in Orlando from our single office in Coral Gables.

This page is for three kinds of readers:

• Families where no relative can or should serve as personal representative (often called an executor).
• Beneficiaries and heirs who have questions about how an estate is handled.
• Fiduciaries who want advice about their duties.

The firm advises and represents personal representatives, trustees and beneficiaries, subject to the governing instrument and applicable law.

Specific Matters a Probate Litigation Attorney May Address

A probate litigation attorney may address will contests, undue influence, lost wills, and disputes over a personal representative’s conduct. Each one depends on the facts and the governing instrument.

• Will contests. Under Florida law, a will is void if fraud, duress, mistake or undue influence procured its execution. § 732.5165 A contest to a will may not be commenced before the testator’s death. § 732.518
• Undue influence presumption. Florida law creates a presumption of undue influence in certain circumstances, and Fla. Stat. § 733.107 governs it.
• Lost or destroyed wills. An interested person may try to establish a lost will’s full terms. Fla. Stat. § 733.207 requires that the terms of a lost or destroyed will be proved by two disinterested witnesses, or by one disinterested witness if a correct copy is provided.
• Personal representative conduct. Florida law lists causes for removal of a personal representative, including failure to account for the sale of property or to produce and exhibit the assets. § 733.504 Whether removal is appropriate depends on the court and the facts.
• Trust disputes. Trust contests follow their own rules. The contestant has the burden of establishing the grounds for invalidity. § 736.0207

Wills changed by a caregiver can raise related undue influence questions.

How a Probate Matter Generally Proceeds

A probate matter often starts with a consultation, a document review and advice on options. The order and timing depend on the will or trust, Florida law and the facts of each case.

1. Consultation. The first consultation is free, confidential, and carries no obligation to continue. The attorney listens to your concerns and reviews the documents you have.
2. Document review. Records may include the will, any codicils, trust documents and estate records. How long this takes depends on the case.
3. Advice on options. The attorney may explain possible claims, defenses and filings in the probate court. Each option depends on the law and the facts.
4. Negotiation, mediation or hearing. Some matters resolve by agreement. Others need a hearing. No timeline or result can be predicted in advance.

For a revocable trust that became irrevocable at the settlor’s death, Fla. Stat. § 736.0604 bars a contest not started within the earlier of the chapter 95 period or six months after the trustee sent that person a copy of the trust instrument and a notice required by the statute. § 736.0604 How this applies depends on the trust instrument and the facts.

Personal Representatives: Who Can Serve and the Firm’s Role

Leslie V. Marenco can serve individually as trustee or personal representative. The firm itself does not serve as personal representative.

Florida law sets who may be appointed. Under § 733.302, a person who is sui juris (legally able to manage their own affairs) and a Florida resident at the time of death is qualified, subject to the statute’s limits. Certain trust companies, banks and savings institutions authorized to exercise fiduciary powers may also act. § 733.305

A personal representative may be entitled to a commission for ordinary services, payable from estate assets without court order. Compensation of a personal representative is addressed in § 733.617. The amount depends on the instrument, any court order and the facts of the estate.

Under Fla. Stat. § 733.617, compensation limits can apply when an attorney who prepared the will nominated the attorney or a related person as personal representative, unless statutory disclosures were made. How this applies depends on the will and the facts.

A personal representative’s fiduciary duty is the same as that of a trustee of an express trust. The personal representative may be liable to interested persons for loss from a breach of that duty. § 733.609 The scope of any duty depends on the governing instrument and Florida law.

Fees, Costs and How Engagements Are Set

The first consultation is free, confidential and carries no obligation to continue.

Florida law also allows a court to award reasonable attorney compensation from an estate in some circumstances. § 733.106 Whether and how much depends on the court and the facts.

The first consultation is free, confidential, and carries no obligation to continue. It is not an agreement to represent you.

Why Consider Trust Counsel for an Orlando Probate Matter

Trust Counsel is a Coral Gables practice that focuses on trusts and estates law in Florida. Its only office is in Coral Gables, and it serves clients in Orlando.

• Office: one office, located in Coral Gables, Florida.
• Lawyer: Leslie V. Marenco is the lawyer for this practice. Assistants and office staff support the work.
• Scope: probate litigation, trust litigation, trust administration, estate tax planning, business succession planning, asset protection, guardianship and estate planning.
• Responsibility for this page: Leslie V. Marenco, Trust Counsel, PL, Coral Gables, Florida.

Clear communication and organized records may help a client follow a matter. Whether that happens depends on the governing instrument, applicable law and the facts of each case.

Frequently Asked Questions