Who Controls the Estate While a Florida Will Contest Is Pending?

When a will is challenged, the first question is who controls the estate right now. Families asking about a neutral personal representative will contest Florida case usually want two answers: whether the current fiduciary can be replaced, and whether an impartial person can take over.

What Happens to the Estate While a Will Is Contested in Florida

A contest does not automatically remove the personal representative. The appointed personal representative generally keeps serving unless a court orders otherwise. Florida law defines the personal representative as the fiduciary the court appoints to administer the estate. Some readers call this role an executor, but Florida’s term is personal representative.

The personal representative must take all steps reasonably necessary to manage, protect and preserve the estate until distribution, under Fla. Stat. § 733.607. That duty continues during a contest. The court keeps oversight, and the personal representative acts under its orders.

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

Who Can Contest a Will and Who Has Standing

Florida law defines an interested person as anyone who may reasonably be expected to be affected by the outcome. That often includes people who would inherit under a prior will or if the current will fails.

The will’s proponent goes first. Under Fla. Stat. § 733.107, the proponent must first show that the will was formally executed and attested. After that, the contestant must prove the grounds for opposing probate.

Common grounds include fraud, duress, mistake and undue influence. Under Fla. Stat. § 732.5165, a will is void if fraud, duress, mistake or undue influence procured its execution. Under Fla. Stat. § 732.5165, a will is void if the execution is procured by fraud, duress, mistake, or undue influence. Lack of mental capacity is another common claim.

Florida also presumes undue influence in certain relationships of trust. That presumption shifts the burden of proof, as Fla. Stat. § 733.107(2) explains. A contest cannot begin before the person who made the will has died, under Fla. Stat. § 732.518.

When a Personal Representative Can Be Removed or Replaced

Under Fla. Stat. § 733.506, removal proceedings may be commenced by the court or an interested person, and the court revokes the personal representative’s letters. Under Fla. Stat. § 733.506, proceedings for removal of a personal representative may be commenced by the court or upon the petition of an interested person.

Removal happens in court. Under Fla. Stat. § 733.506, the court or an interested person can start removal proceedings. The court revokes the letters of a removed personal representative. Removal does not free that person from liability.

A breach can create liability to interested persons for damage or loss resulting from the breach, under Fla. Stat. § 733.609. Whether removal is warranted depends on the facts.

When a Neutral Fiduciary or Administrator Ad Litem May Be Appointed

A court can bring in a neutral party when the personal representative cannot act in a specific matter. Florida calls one version an administrator ad litem. Under Fla. Stat. § 733.308, the court shall appoint one without bond when the estate must be represented and the personal representative is unable to do so.

When people search for a neutral personal representative will contest Florida options, they usually mean an impartial party. An administrator ad litem handles one proceeding. After a removal, the court appoints a successor personal representative or, if needed, a curator to serve until a successor personal representative is appointed, under Fla. Stat. § 733.5061. A curator is a person the court appoints to take charge of an estate until letters are issued, as Fla. Stat. § 731.201 defines the term.

The court makes these appointments, not the parties. Trust Counsel’s attorneys can serve individually as trustee or personal representative. That role is separate from the firm’s advisory and litigation work.

What to Expect: The Contest Process Step by Step

A will contest usually moves through five stages, from document review to a court ruling. Timing varies with the court calendar and how complex the dispute is.

1. Review the paperwork. Start with the will, the probate file and any notice of administration. The personal representative must promptly serve that notice on known persons, including the surviving spouse and beneficiaries, under Fla. Stat. § 733.212.
2. Check the deadline. An objection to the will’s validity, venue or jurisdiction is due within 3 months after service of the notice. The outer limit is the earlier of a final discharge order or 1 year after service. 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.” Read our time limit guide for more detail.
3. Gather evidence. Collect medical records, prior wills and communications. Organize them around the grounds for contest and the burden of proof.
4. File the objection or petition. The filing starts court proceedings.
5. Obtain a ruling. The court decides the contest and how it affects administration and distribution.

A caveat is an early filing. An interested person who is apprehensive that an estate will be administered or a will admitted to probate without their knowledge may file a caveat with the court, under Fla. Stat. § 731.110. If an interested person other than a creditor has filed a caveat, the court cannot admit the will or appoint a personal representative until formal notice of the petition for administration has been served on the caveator or the caveator’s designated agent and the caveator has had the opportunity to participate in the proceedings on the petition. A caveat filed before death expires 2 years after filing.

Why Work With Trust Counsel on a Will Contest

Trust Counsel, PL is a trusts and estates law firm with its only office in Coral Gables, Florida. The firm focuses on probate litigation, trust litigation, trust administration and fiduciary advice. Leslie V. Marenco is the responsible lawyer for this page. Tanya Vega is also a lawyer at the firm.

The firm represents beneficiaries and heirs as well as fiduciaries. That means a contest can be reviewed from more than one side. The firm can look at what a challenger needs and what a fiduciary must defend.

We serve clients in Fort Lauderdale, Boca Raton, West Palm Beach, Doral, Kendall, Pinecrest, Key Biscayne and Aventura.

Frequently Asked Questions About Will Contests and Estate Control