Left Out of a Will? Get Clear Answers Before You Decide What to Do

Can I contest a will if I was left out in Florida? Possibly, but being left out is not enough on its own. You need standing, a recognized legal ground, and you need to act before a short deadline runs out.

Short Answer: Standing Depends on What You Would Take Under Another Document

Whether a person omitted from a Florida will has grounds to contest it depends on the particular facts involved. Standing means the legal right to ask the probate court to examine the will. Without it, the court usually will not hear the challenge.

Intestacy is the set of rules that applies when a person dies without a will covering the property. Under Fla. Stat. § 732.101, any part of an estate not effectively disposed of by will passes to the decedent’s heirs as the Probate Code prescribes.

How an heir who receives nothing under a will is affected depends on the facts of each case. That is why the sections below matter. They cover standing, grounds, timing and procedure, in that order.

Being Left Out Is Not Enough on Its Own

Florida’s rule is narrower. Under Fla. Stat. § 732.5165, a will is void if its execution was procured by fraud, duress, mistake, or undue influence.

That is the key difference. An unfair will is one that hurts you. A legally defective will is one that breaks a rule. Your feelings about the result, however strong, do not make a will defective. You need a ground the law recognizes.

There is one omission rule to know. A child born or adopted after the will was made may take a share under Fla. Stat. § 732.302, if the child has not already received a part of the testator’s property equivalent to a child’s part by way of advancement. That share applies unless the omission appears from the will to be intentional, or the statute’s other-parent exception applies.

Under Florida law, a child born or adopted after a will was made may receive a share of the estate if the will makes no provision for that child, the child has not received an advancement equal to a child’s part, and the omission was not intentional or covered by the other-parent exception (Fla. Stat. § 732.302). Under Florida’s pretermitted-child statute, when a testator’s will makes no provision for a child born or adopted after the testator signed it, and that child has not already received an equivalent part of the testator’s property as an advancement, the child is entitled to an estate share equal in value to what the child would have taken had the testator died intestate, unless (1) the will shows that the omission was intentional, or (2) the testator had one or more children when the will was executed and devised substantially all the estate to the other parent of the pretermitted child, and that other parent survived the testator and is entitled to take under the will. The child must not already have received a part of the testator’s property equivalent to a child’s part by way of advancement.

Who Has Standing: An Earlier Will or Intestacy

Your standing depends on your place in the estate plan. It does not depend only on how close you were to the person who died. A grandchild, a sibling and a stepchild can each stand in a different position.

The earlier-will route works like this. The outcome of the contest changes what you would receive.

The intestacy route works differently. If there is no valid will, or the will is set aside, Florida’s intestacy rules decide who inherits. Under Fla. Stat. § 732.103, the estate not passing to a surviving spouse goes first to the decedent’s descendants. If there are none, it moves to the parents, then to siblings and their descendants, then to grandparents and other kindred in the order the statute states.

Timing matters here too. Under Fla. Stat. § 732.518, an action to contest a will may not be started before the testator dies.

Before you speak with a lawyer, gather copies of every earlier will, the current will and any codicils. Keep the notice you received, too. Those papers show where you stand.

Grounds for Challenging a Will in Florida

A will contest must rest on a recognized legal ground. The main ones are lack of capacity, undue influence, fraud, duress, mistake and defective signing. Name the ground as precisely as you can when you talk with a lawyer.

Lack of capacity. Under Fla. Stat. § 732.501, a person who makes a will must be of sound mind and either 18 or more years old, or an emancipated minor. A will made without sound mind can be contested on that basis.

Undue influence. Someone may have pressured the testator so the will reflects that person’s wishes, not the testator’s. Under § 732.5165, a will procured by undue influence is void.

Fraud, duress and mistake. The same statute covers these grounds. Duress means threats or coercion. Fraud means deception that changed the will.

Under Fla. Stat. § 732.502, a will must be in writing and signed at the end by the testator, or have the testator’s name subscribed at the end by another person in the testator’s presence and at the testator’s direction. It needs at least two attesting witnesses, who must sign in the testator’s presence and in each other’s presence. No particular form of words is required if these formalities are met.

How Long You Have to Contest a Florida Will

The main deadline is 3 months after you are served a copy of the notice of administration. Under Fla. Stat. § 733.212, an interested person served with that notice must object to the will’s validity, venue or the court’s jurisdiction within 3 months, or those objections are forever barred.

The 3-month period may be extended only for estoppel based on a misstatement by the personal representative about the deadline. It may not be extended for failure to disclose information or for misconduct by the personal representative or anyone else.

There is also an outer limit. Under the same statute, 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 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.” Fla. Stat. § 733.212(3) reads: “Any interested person on whom a copy of the notice of administration is served must object to the validity of the will, the venue, or the jurisdiction of the court by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred.”

If you received a notice, the deadline may already be running. The exact date depends on the facts of the estate, including whether and when notice was served.

How a Will Contest Begins in Florida Probate

A contest is raised in probate court. Under Fla. Stat. § 733.101, venue for probate lies in the Florida county where the decedent was domiciled. If the decedent had no Florida domicile, venue lies in any county where the decedent’s property is located; if the decedent had no domicile and possessed no property in Florida, venue lies in the county where any debtor of the decedent resides. A court may transfer a case filed in the wrong county.

The filing should state the ground, your interest in the estate and the facts supporting each ground. Heirs and interested parties may also file a caveat. The Miami-Dade Clerk of Courts describes that filing on its probate court page.

Burden of proof follows a set order. Under Fla. Stat. § 733.107, the proponent of the will must first establish prima facie that it was formally executed and attested. After that, the contestant has the burden of establishing the grounds on which probate is opposed.

Talk With Trust Counsel About Your Situation

If a parent’s or relative’s will left you out or gave you far less than you expected, you may be weighing a contest right now. A deadline may be running, and the documents matter.

Trust Counsel, PL is in Coral Gables. To discuss the will, any earlier documents and the notice you received, call (305) 707-7126 or schedule online through the contact page. Leslie V. Marenco is the responsible lawyer for this page. The firm’s attorneys focus on probate litigation, trust litigation and guardianship matters. The firm advises and represents trustees, personal representatives and beneficiaries. The first consultation is free, confidential, and carries no obligation to continue.

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