Trust Contest Defense for Florida Beneficiaries, Heirs and Fiduciaries

A trust contest defense attorney in Florida helps a trustee or other fiduciary respond when a beneficiary or heir says a trust, or an amendment to it, is not valid. The defense turns on the trust documents, the settlor’s history and the statutes that set the grounds and deadlines. Trust Counsel, PL focuses on trust and estate litigation from its only office, in Coral Gables, Florida.

What Trust Contest Defense Covers and Who It Is For

A trust contest is a court challenge to whether a trust, or part of it, is valid. It usually starts after the settlor (the person who created the trust) dies. This page is for trustees, successor trustees, personal representative (often called an executor) and other fiduciaries named in a trust that someone has challenged or threatened to challenge. Trust Counsel’s attorneys can serve individually as trustee or personal representative. The firm advises and represents trustees, personal representatives and beneficiaries in trust and probate disputes. For the wider practice, see our trust litigation attorney page.

Common Grounds Beneficiaries Raise in a Florida Trust Contest

The most common grounds are lack of capacity, undue influence, fraud and document problems. The challenger carries the load of proof. Under § 736.0207, the contestant has the burden of establishing the grounds for invalidity.

• Lack of capacity. The challenger says the settlor could not understand the trust or amendment at signing. Under § 736.0601, the capacity needed for a revocable trust is the same as that needed to make a will.
• Undue influence. The challenger says someone pressured or controlled the settlor’s choices. Under § 736.0406, a trust or part of a trust procured by undue influence is void.
• Fraud. The challenger says the settlor was misled.
• Disputed amendments. The challenger says a later amendment is not genuine. Our forged trust amendment page covers this issue in more detail.
• Penalty clauses. Some trusts threaten to cut out anyone who contests. Under § 736.1108, such a provision is unenforceable for trusts created on or after October 1, 1993, and a revocable trust counts as created when the right to revoke it ends.

The grounds named in the petition shape the work from day one.

What a Fiduciary’s Defense Includes

A fiduciary’s defense starts with the documents and then moves to the petition, discovery and the ongoing administration. Here is what the work usually covers:

• Document review. The trust, every amendment, drafting and signing records, and the administration file.
• Petition review. Whether the petition has procedural or legal defects that support an early motion.
• Discovery. Written requests, document production, subpoenas, and depositions of the challenger, witnesses and drafting professionals.
• Evidence on capacity and influence. Medical records, witness statements and the circumstances of signing.
• Protecting the administration. Accountings and clear communication with beneficiaries while the case is pending.
• Resolution. Settlement talks, mediation and trial preparation if the contest does not settle.

Read about a beneficiary’s right to see trust documents.

How a Trust Contest Defense Works: Steps and Timeline

A trust contest moves from a deadline check to discovery and then to settlement or trial. Each step builds on the one before.

1. Intake and deadline check. Bring the trust, amendments, the death certificate and any petition or notice you received. For a trust that was revocable at the settlor’s death, § 736.0604 bars a contest not started within the earlier of the time under chapter 95 or six months after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust’s existence, of the trustee’s name and address, and of the time allowed for commencing a proceeding.
2. Notice to beneficiaries. For an irrevocable trust, § 736.0813 requires the trustee, within 60 days after acquiring knowledge of the trust’s creation or that a formerly revocable trust has become irrevocable, to give qualified beneficiaries notice of the trust’s existence, the settlor’s identity, and their rights under the section; paragraph (b) does not apply to an irrevocable trust created before the code’s effective date, or to a revocable trust that became irrevocable before that date.
3. Response to the petition. Filings follow the petition and the court’s schedule.
4. Discovery. Depositions and records requests run on the court’s scheduling order.
5. Mediation or trial. If the contest does not settle, it goes to trial.

While this happens, the trustee keeps administering the trust. Under § 736.08165, while a proceeding is pending the trustee proceeds with administration as if no proceeding had been commenced, but no action may be taken and no distribution may be made to a beneficiary in contravention of the rights of persons who may be affected by the outcome. On motion of a party and good cause shown, a court may make an exception and authorize the trustee to act or distribute trust assets, subject to conditions such as posting bond. The timeline depends on the grounds, the number of parties and the court’s calendar. No one can predict how long a given contest will take.

Trust Counsel’s Role for Fiduciaries

The firm does not serve as trustee, personal representative or any other fiduciary. Trust Counsel’s attorneys can serve individually as trustee or personal representative. The firm advises and represents trustees, personal representatives and beneficiaries in trust and probate disputes. Leslie V. Marenco is the responsible lawyer for this page. Tanya Vega is also a lawyer at the firm.

The firm’s litigation work supports the fiduciary’s defense of the administration, from the first document review through any hearing. Fiduciary compensation is a separate question. Under § 733.617, a personal representative is entitled to a commission payable from estate assets without court order for ordinary services. That commission is based on the compensable value of the estate.

Cost, Compensation and Time Questions Fiduciaries Ask

Cost depends on the grounds raised, how much discovery is needed, the number of depositions, motion work and whether the case settles. The firm offers a free first consultation — confidential, with no obligation to continue. The firm does not publish hourly rates, retainers or price ranges on this page.

In actions for breach of fiduciary duty or challenging a trustee’s powers, § 736.1004 directs the court to award taxable costs, including attorney fees. The court may decide which party’s interest in the trust or other property pays them. Whether a fiduciary recovers defense costs turns on the claims and the court’s rulings.

Frequently Asked Questions About Trust Contest Defense in Florida

Talk to Trust Counsel About Your Trust Contest

If a beneficiary or heir has challenged the trust you administer, the petition and the deadlines need prompt review. Bring the trust and every notice you received to a review with Leslie V. Marenco. Call (305) 707-7126 or schedule online to book your free first consultation, which is confidential and carries no obligation to continue.