Probate and Trust Litigation | Coral Gables, Florida
Florida Trust Contest vs. Will Contest: Key Differences
A will contest and a trust contest can look similar, but they follow different paths. Trust Counsel, PL, in Coral Gables, focuses on probate and trust litigation for beneficiaries, heirs and fiduciaries.
By Leslie V. Marenco · Published October 21, 2026
The Short Answer: Where Each Challenge Is Filed
A will contest is raised in the probate case for the estate. A trust contest is brought about the trust itself, and it can proceed outside probate. Both often rest on the same grounds, such as lack of capacity, undue influence, fraud, duress or mistake. The core question is similar. The procedure, the deadlines and the notice trail are different.
A will is handled under the Florida Probate Code (Fla. Stat. ch. 733). A trust is handled under the Florida Trust Code (Fla. Stat. ch. 736). If you hold a copy of a will or trust after a death, your first question is which clock applies. For a wider view of trust disputes, see our trust litigation attorney page.
If you just received a will or trust after a loss and aren't sure which deadlines apply, our team can talk it through with you. Talk it through with Trust Counsel, PL — the first consultation is free, confidential, and carries no obligation.
How a Will Contest Proceeds in Florida
A will contest starts with notice. The personal representative must promptly serve a notice of administration on known persons, including beneficiaries. Fla. Stat. § 733.212 sets out that duty. A personal representative is the person who manages the estate, often called an executor.
The deadline is short. A person who was served must file an objection to the will’s validity, venue or jurisdiction within 3 months after service. If they don’t, those objections are forever barred. The 3-month period can be extended only for estoppel based on a misstatement by the personal representative about the time limit. It cannot be extended for failure to disclose information or for misconduct.
There is also an outer limit. Objections must be filed no later than 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.” Under Florida Probate Rule 5.240, the notice must also warn that failing to contest the will may, in some cases, waive the right to challenge a trust that the will incorporates by reference. Many readers miss that point.
Once a contest is filed, the will’s proponent must first show the will was properly signed and witnessed. After that, the person contesting must prove the grounds for the challenge. Fla. Stat. § 733.107 states that burden shift. Write down the date you received the notice.
How a Trust Contest Proceeds in Florida
A trust contest can raise the same grounds. Under Fla. Stat. § 736.0406, a trust or any part of it procured by fraud, duress, mistake or undue influence is void. The capacity needed to create or change a revocable trust is the same as the capacity needed to make a will, under Fla. Stat. § 736.0601.
The timing works differently. Fla. Stat. § 736.0207(2) states that this does not prohibit such action by the guardian of the property of an incapacitated settlor. Fla. Stat. § 736.0207 also places the burden on the contestant to prove the grounds for invalidity.
The filing window comes from Fla. Stat. § 736.0604. An action to contest the validity of a trust that was revocable at the settlor’s death is barred, if not commenced within the earlier of: (1) the time provided in chapter 95; or (2) 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. One is the time under chapter 95. The other is six months after the trustee sends a copy of the trust and a notice. That notice must give the trust’s existence, the trustee’s name and address, and the time allowed to file. The notice date controls the six-month clock, so don’t assume one fixed period.
A contest to the validity of a trust that was revocable at the settlor’s death is barred if not commenced within the earlier of the time provided in 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. If your main concern is a trustee holding back money, read our page on trustees who won’t distribute trust money.
Living Trust vs. Will: Side-by-Side Comparison
A will contest runs through probate under chapter 733. A trust contest runs under chapter 736, and it changes the notice trail and the clock.
| Point | Will contest | Trust contest |
|---|---|---|
| Governing law | Florida Probate Code, ch. 733 | Florida Trust Code, ch. 736 |
| Starting event | Notice of administration served | Trust irrevocable, or settlor died; trustee notice for the six-month rule |
| Filing window | 3 months after service; no later than 1 year | Earlier of the chapter 95 period or 6 months after trustee notice |
| Who holds the assets | Personal representative | Trustee |
| Notice trail | Notice of administration and formal service | Copy of the trust and trustee notice |
These are statute-based differences. They describe the rules, not how any particular dispute would turn out.
What a Living Trust Does and Does Not Change in a Dispute
A living trust can keep assets out of probate. It does not make the trust immune from challenge. The trust document can still be attacked for fraud, duress, mistake or undue influence. The same grounds can void a will under Fla. Stat. § 732.5165.
Under Fla. Stat. § 733.107, that presumption implements public policy against abuse of fiduciary or confidential relationships. In any transaction or event to which the presumption of undue influence applies, it shifts the burden of proof.
Assets never moved into the trust may still pass under a will. A family dispute can therefore involve both documents at once. If you suspect property was never retitled, see our page on assets left out of a Florida trust.
Estate disputes can pull courts in. The ACTEC inheritance explainer describes how disputes among beneficiaries, family members or creditors can lead to court involvement. A trust changes the procedure and the notice trail. It does not change the basic grounds for a challenge.
No-Contest Clauses in Florida Wills and Trusts
A no-contest clause tries to cut or remove a gift from anyone who challenges the document. For wills, Fla. Stat. § 732.517 makes a provision penalizing a contest unenforceable.
For trusts, Fla. Stat. § 736.1108 says the same thing. That rule applies to trusts created on or after October 1, 1993. A revocable trust counts as created when the right of revocation ends.
Whether a specific clause falls under that rule depends on its exact wording and the facts. Review the document with a lawyer rather than relying on a summary.
Whether to include a clause is a planning decision for the person who signs the document. The Florida rules above shape what such a clause can do.
Not sure what your next step is?
Talk it through with Trust Counsel, PL — the first consultation is free, confidential, and carries no obligation.
Frequently Asked Questions
What is the statute of limitations for contesting a will in Florida?
Under the probate statute, objections to a will’s validity, venue or jurisdiction generally must be filed within 3 months after service of the notice of administration (Fla. Stat. § 733.212). They are barred no later than 1 year after service or the final discharge order, whichever comes first. 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.”
Can a personal representative (often called an executor) mistreat a beneficiary?
Complaints about a fiduciary’s conduct are a separate issue from whether the document is valid. For a trustee who spent trust money, see our page on trustee spent trust money in Florida.
What are the key differences in a trust contest vs will contest Florida?
A will contest runs in probate under chapter 733, with a 3-month window after notice. A trust contest runs under chapter 736, with a clock tied to the trustee’s notice. The grounds are similar, but the deadlines and notice rules differ.
Should I have a no-contest clause in my will?
That is a planning choice. For trusts, the Florida rule that penalty provisions are unenforceable is stated in Fla. Stat. § 736.1108, which applies to trusts created on or after October 1, 1993.
When to Talk With a Florida Trust Litigation Attorney
If you just received a will or trust after a loss, you may be grieving while facing dates you didn’t choose. The decisions in front of you are concrete. You may be deciding whether to object to the document, whether a no-contest clause could apply, or whether the personal representative or trustee is handling things correctly.
Gather the document, the notice you received and every date printed on it. Those dates drive the clocks described above.
Our first consultation is free, confidential and carries no obligation to continue. The firm advises and represents trustees, personal representatives and beneficiaries from its only office in Coral Gables. Leslie V. Marenco is the responsible lawyer for this page. Call (305) 707-7126 or request a consultation online.
What Sets the Two Apart
The governing document
A will contest challenges a will admitted through the probate process.
The parties involved
Trustees, personal representatives and beneficiaries each have distinct roles.
The court process
Probate court handles will contests within the estate administration. Trust disputes may proceed through separate civil filings, depending on the facts.
Timing matters
Both types of challenge involve procedural steps that can be time-sensitive. Early review of the documents helps clarify which steps apply.
Act Early, Gather Documents
Contest questions often turn on timing and paperwork. Bring the will, trust, any amendments and notices you have received to your first conversation with a lawyer.
Questions to Bring to Your First Consultation
Which document is at issue?
Ask whether the dispute concerns a will, a trust, or both, and whether any amendments or prior versions exist.
Where is the matter pending?
Identify whether the estate is in probate, whether a trustee has administered the trust, or whether a court case has already been filed.
What notices have you received?
Keep every letter, notice of administration or accounting. These papers help define your options and your next steps.
What role do you have?
Clarify whether you are a beneficiary, heir, trustee or personal representative. Each role carries different rights and responsibilities.