When a Will or Trust Dispute Reaches Court, Know What a Probate Litigator Does

A probate litigator advises or represents people in court disputes over a will, a trust, or how an estate is handled. The role begins where a routine estate matter becomes a disagreement. Whether that happens depends on the governing will or trust, applicable Florida law, and the facts of each case.

If a parent, sibling, or other relative has died and the family is now at odds, you may feel stuck. This guide explains what the role involves in Florida, who it may cover, and how fees are agreed. Trust Counsel, PL is a Coral Gables firm that focuses on trusts and estates law. Leslie V. Marenco may advise or represent beneficiaries, heirs, and fiduciaries, depending on the governing instrument, applicable Florida law, and the facts of each case.

What probate litigation means

Probate litigation is a contested matter tied to probate, the court process for settling a deceased person’s estate. Routine administration moves forward when no one objects. Litigation begins when someone challenges a will, a trust, a distribution, or a fiduciary’s actions.

Many disputes start with a letter or a family conversation. They reach court later, if at all. That path depends on the governing will or trust, applicable Florida law, and the facts of each case.

Time limits can matter early. A will contest generally cannot start before the person who made the will dies, under § 732.518. Under § 733.212, an interested person served with the notice of administration who wants to challenge the validity of the will, the qualifications of the personal representative, venue, or the court’s jurisdiction is generally required to file that objection within 3 months after the date the notice was served on that person, and the statute provides that objections not timely filed are forever barred, subject to the limited estoppel-based extension the statute describes; how the deadline applies depends on applicable Florida law and the facts of each case.

What a probate litigator typically does

What does a probate litigator do? In short, the lawyer reviews the documents, weighs the claim or defense, and explains the options that may apply. Leslie V. Marenco advises and represents clients in these matters, depending on the governing instrument, applicable Florida law, and the facts of each case.

The review may cover the will or trust, estate records, and any accountings. The lawyer may then discuss deadlines that could apply to the matter.

If a case goes to court, possible steps include pleadings, motions, discovery, hearings, and mediation. The steps used depend on the court’s rules and the case. Florida circuit judges have described case-management practices in a Florida Courts testimony summary. That summary describes dismissal for failure to prosecute or lack of reasonable diligence. Pace and deadlines can matter.

Who a probate litigator may represent

A probate litigator may advise or represent beneficiaries, heirs, personal representatives (often called executors), and trustees. The right role depends on which side of the matter the client is on.

Beneficiaries and heirs may question a will, a trust amendment, or how assets are distributed. Personal representatives and trustees may need advice when a beneficiary raises a concern or claim.

The firm advises and represents trustees, personal representatives and beneficiaries. Trust Counsel’s attorneys can serve individually as trustee or personal representative. The firm itself does not serve as a fiduciary.

A fiduciary’s duties and any liability depend on the governing instrument and applicable Florida law. Under § 733.609, a personal representative’s fiduciary duty is the same as a trustee’s duty under an express trust. A personal representative may be liable for losses from a breach of that duty, depending on the facts.

Probate litigation lawyer vs. probate lawyer vs. estate planning attorney

A probate lawyer often handles routine estate administration. A probate litigation attorney focuses on disputed matters. That split is a common pattern, not a fixed rule, and it depends on the facts.

An estate planning attorney typically helps people prepare wills and trusts before death. Those drafting choices can later shape a dispute. The roles can overlap, and one lawyer may draft, administer, and litigate, depending on the matter.

The title a lawyer uses does not decide what work is needed. The governing will or trust, the court record, and the people involved do. Ask which documents the lawyer will review first.

Common matters that may call for a probate litigator

Common matters include will contests, trust disputes, and claims about a fiduciary’s conduct. Each depends on the governing instrument and the evidence.

In a will contest, the proponent first must establish formal execution and attestation. The contestant then bears the burden on the grounds for opposing probate, under § 733.107. Under § 732.5165, a will is void if fraud, duress, mistake, or undue influence procured its execution. Whether those grounds exist depends on the facts.

In a trust dispute, the contestant generally has the burden of establishing the grounds for invalidity, under § 736.0207. A challenge to a revocable trust generally cannot begin until the trust becomes irrevocable.

Trustee information duties may also come up. Under § 736.0813, a trustee must keep qualified beneficiaries reasonably informed. Upon reasonable request, the trustee must provide a complete copy of the trust instrument. How that applies depends on the trust.

Claims about a fiduciary’s conduct may or may not amount to a breach of duty. That depends on the governing instrument, applicable law, and the facts. Readers focused on challenging a will can read how to contest a will in Florida.

What litigation involves and how fees are set

Litigation may take time and may involve costs. Its results are uncertain and depend on the governing instrument, applicable law, and the facts of each case.

Fees are agreed between the client and the attorney according to the scope of the work. The scope may reflect the documents involved, the number of parties, the court steps needed, and the expected time. Court costs and other expenses may apply. The attorney will explain how they are handled when the engagement is agreed.

Courts may also address costs and fees. Under § 736.1004, certain actions for breach of fiduciary duty or challenging a trustee’s exercise of, or failure to exercise, its powers may lead to an award of taxable costs, including attorney fees. Whether a particular proceeding falls within the statute depends on applicable law and the facts of each case. When costs are awarded, the court may, in its discretion, direct payment from a party’s interest in the trust, if any, enter a judgment that may be satisfied from the party’s other property, or both.

People often wait too long to ask questions. Deadlines depend on applicable law and the facts of each case, so early review is worth considering.

Talking through your situation with Trust Counsel

If you are researching during a hard time, you do not need every answer yet. You may be dealing with a death, or a disagreement over an estate or trust, on behalf of someone you love.

Trust Counsel’s only office is in Coral Gables. Leslie V. Marenco is the attorney responsible for this page. We serve clients in Fort Lauderdale, Boca Raton, West Palm Beach, Doral, Kendall, Pinecrest, Key Biscayne, and Aventura.

Can a will be contested before the person dies?

The answer depends on the governing instrument, applicable Florida law, and the facts of each case. Under § 732.518, a will contest may not be commenced before the testator’s death.

Does a probate litigation attorney also handle estate planning?

Some attorneys do both. The work depends on the matter and the lawyer’s practice.

Trust Counsel offers a free first consultation that is confidential and without obligation to continue. Outcomes depend on the governing instrument, applicable law, and the facts of each case. If a dispute over a loved one’s will or trust is on your mind, contact Trust Counsel or call (305) 707-7126.