What Does Probate Litigation Mean? A Florida Guide

So, what does probate litigation mean? Probate litigation is a court fight over a deceased person’s estate. It starts when people disagree about a will, how assets are handled, or who is owed what, and they can’t settle it on their own.

If you’re reading this, you may have received a notice about an estate. You may also be worried about how a relative’s property is being managed. This guide explains what probate litigation is, what starts it, the common claim types, and how a case moves through a Florida court.

What probate litigation means

Probate litigation is a lawsuit or contested court proceeding about how a deceased person’s estate is administered. It begins when someone challenges a step in that process and a judge must decide.

Probate has two tracks. Routine administration covers the uncontested steps: gathering assets, paying valid debts, and distributing property. Litigation starts when a dispute stops those steps from moving forward.

Probate questions often turn on the specific facts of each estate. That chapter sets out how an estate is opened, managed and closed.

The person in charge of the estate is the personal representative (often called an executor). That role carries fiduciary duties. Under Fla. Stat. § 733.609, a personal representative’s duty matches the duty a trustee of an express trust owes. When that duty is questioned, the dispute can become litigation.

For a broader overview, see our probate litigation overview.

What triggers a probate dispute

A probate dispute usually starts with a challenge to the will, to how assets are handled, or to a claim against the estate. Each of these can end up in front of a judge.

Heirs and beneficiaries often question whether a will is valid. A will is void if fraud, duress, mistake or undue influence procured its execution. Under Florida law, a will is void if its execution is procured by fraud, duress, mistake, or undue influence.

Others worry about how the personal representative or trustee is running things. They may ask about missing records, unexplained sales or delayed distributions. Conflicts among beneficiaries also arise over shares, personal property and timing.

Creditors can start disputes too. A creditor’s claim must be filed in the probate case within set deadlines. Under Fla. Stat. § 733.702, a claim not filed on time is barred, unless the court extends the time for fraud, estoppel or insufficient notice. 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.”

Common types of probate litigation

The most common types are will contests, disputes over estate assets, fiduciary breach claims and real estate fights. Each type has its own proof issues.

In a will contest, the burden starts with the person offering the will. Under Fla. Stat. § 733.107, the proponent must first show the will’s formal execution and attestation. After that, the contestant must prove the grounds for opposing probate.

Undue influence claims carry a special rule. The same statute says that in any transaction or event to which the presumption of undue influence applies, the presumption implements public policy against abuse of fiduciary or confidential relationships and shifts the burden of proof under ss. 90.301-90.304. That presumption shifts the burden of proof.

Fiduciary breach claims target a personal representative or trustee who may have acted for personal gain or failed to keep records. A personal representative may also be removed and the letters revoked for failing to account for the sale of property or to produce and exhibit the assets of the estate when so required, or for wasting or maladministration of the estate, under Fla. Stat. § 733.504.

Real estate disputes involve property the estate holds. Common questions include who holds title, who can live in a home, and whether it can be sold.

Trust disputes often overlap with probate. A will or trust may require arbitration of disputes between beneficiaries and a fiduciary. That provision is enforceable, except for disputes over whether all or part of the will or trust is valid, under Fla. Stat. § 731.401.

How a probate dispute moves through the court

A probate dispute starts with a filing in the right county, then moves through notice, records requests, hearings, and a ruling or settlement. Timing depends on the facts of each case.

Venue usually lies in the Florida county where the decedent was domiciled. If the decedent had no Florida domicile, venue lies where the decedent’s property is located, under Fla. Stat. § 733.101.

Deadlines matter. An interested person served with a notice of administration must file an objection to the will’s validity, venue or jurisdiction within 3 months of service. Otherwise, the objection is forever barred, under Fla. Stat. § 733.212. The 3-month period may be extended only for estoppel based on a personal representative’s misstatement about the deadline.

Some people file a caveat early. The Miami-Dade Clerk’s probate court page explains that heirs, interested parties and creditors may file a caveat.

Many disputes settle. A court may authorize a compromise if it is satisfied the compromise serves the interests of the interested persons, under Fla. Stat. § 733.708. Claims against the estate may not be compromised until after the time for filing objections to claims has expired. Otherwise, the judge decides the issues after hearings.

Who pays for contentious probate

The court decides who pays litigation costs. It can charge them to the estate, to one party’s share, or split them, depending on the case.

In general probate proceedings, costs may be awarded as in chancery actions. If costs and attorney fees are to be paid from the estate under Fla. Stat. § 733.106, the court, in its discretion, may choose what part of the estate they shall be paid from.

That same statute lists factors the court may weigh. These include each person’s active participation, the potential benefit or detriment to that person’s share, and whether that person prevailed on a claim or objection. The court does not need a finding of bad faith to assess costs against a person’s share.

Under Fla. Stat. § 733.609, the court shall award taxable costs, including attorney’s fees, in actions for breach of fiduciary duty or challenging the exercise of or failure to exercise a personal representative’s powers. It may direct payment from a party’s interest in the estate.

A personal representative’s commission is different from litigation costs. Under Fla. Stat. § 733.617, the commission is payable from estate assets for ordinary services. It is based on the estate’s compensable value.

Does probate take your money?

Probate can reduce estate money before heirs receive anything. Court costs, valid debts and some attorney fees come out first.

Estate administration involves several expenses. These can include court filing fees, attorney fees, property valuation costs and valid creditor claims. These costs apply to most estates, whether or not anyone disputes anything.

A contested case adds more expense. Litigation costs can grow as hearings and discovery continue. Under Fla. Stat. § 733.106, any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate.

Creditor claims also reduce what is left. A creditor must file in time, or the claim is barred. The court’s rules on claims protect the estate from late demands, as Fla. Stat. § 733.702 explains.

Disadvantages of probate litigation and questions to consider

The main drawbacks are time, cost, strained family ties and an outcome no one can predict. A judge may rule differently than any party expects.

Contested matters often take longer than uncontested administration. Delays can hold up distributions to every beneficiary, not just the people fighting. Litigation also uses estate money that could otherwise go to heirs.

Family relationships can suffer. Court filings are generally public, which can make private family matters visible to others. A will also cannot penalize someone for contesting it. Under Fla. Stat. § 732.517, that kind of penalty clause is unenforceable.

Before you talk with a lawyer, gather a few items. Collect the will, any estate inventory you have, and every notice you received from the court. Write down the dates on each notice. For next steps on a specific question, see our guide to contesting a will in Florida.

Frequently asked questions