Probate is a court-supervised administrative process wherein the executor (known as the “Personal Representative” in Florida) is tasked with identifying and gathering the assets of a person who has died (known as the “Decedent”), notifying the Decedent’s beneficiaries and creditors of the Decedent’s passing, paying any expenses and debts of the Decedent, and distributing the remaining assets to those beneficiaries of the Decedent’s estate. This court process is not always necessary, especially if proper estate planning was done; however, if assets were not jointly owned or if assets did not contain beneficiary designations, probate may be needed in order to transfer these assets to the proper beneficiaries.
When a loved one passes away, it is always difficult to focus on anything other than the grieving process. We can assist during this difficult time, whether you are the Personal Representative or a beneficiary of a loved one’s estate. Our attorneys will do their best to make the court process as smooth and painless as possible so you can focus on what’s really important: remembering your loved one and spending time with those that are closest to you.
If a Decedent created a trust during his or her lifetime, it may be necessary to administer the trust in order to distribute the assets held in trust for the benefit of the beneficiaries. We can guide and assist the Trustee with his or her fiduciary duties and responsibilities to the trust and its beneficiaries and ensure compliance with the terms of the trust. Our attorneys can also represent beneficiaries of a trust to ensure they are receiving their distributions from the Trustee.
Dealing with the decline in health or death of a loved one is emotionally taxing. Unfortunately, while you are grieving, this can be the time when greedy and selfish people take advantage. This can also be the first time you learn of missing assets and monies, wrongdoings by third-parties, and newly-executed wills or trusts. Below are several types of legal issues that often result in post-death estate litigation in which our office can represent you.
A fiduciary is a person or entity that is nominated to serve in a role of trust or confidence for another person. Typically, this role involves handling financial transactions, monies, and assets. For example, a guardian is a fiduciary to the incapacitated person and that person’s estate and is required to act in the best interests of that person. If you believe that either a Personal Representative, Trustee, or Guardian is not complying with his or her fiduciary duties to an Estate or Trust, our attorneys have years of litigation experience and can assist you in a court action to remove this individual from his or her fiduciary position, attempt to regain any property or assets that were mismanaged or wrongfully disposed of, or otherwise correct any wrongs created by the former fiduciary.
Some possible warning signs to look out for would be if the fiduciary is self-dealing, making bad investment decisions, paying him or herself too much, or stealing assets. If you are a beneficiary of an estate or trust and you see any of these warning signs, you may have a case against the fiduciary. It is best to meet with an attorney as soon as possible so that any damage or wrongdoing by the fiduciary is addressed sooner rather than later.
If you are a fiduciary of an estate or trust being sued for an alleged breach of fiduciary duty, likewise, call our office to discuss as soon as possible. There are strict time limits on how long you have to respond to a complaint and your failure to respond may result in you not being able to defend your actions and may result in a monetary judgment against you for damages.
If you believe a will of a loved one was forged, was the product of undue influence or duress by a third-party, or was made at a time when your loved one did not have the required capacity to execute a will, you may be able to contest the validity of the will in probate court. If proven, these types of claims may invalidate the decedent’s will.
Undue influence is often the most common type of will contest. An example of a possible undue influence claim would be where a caretaker of an elderly person assists the elderly person in changing the will to name the caretaker the primary beneficiary of the estate. If you find out after a loved one passes away that a third-party is the primary beneficiary of the will, you may want to speak to an attorney as soon as possible to see if there are grounds for an undue influence claim.
Another cause of action that may arise in the estate context is tortious interference with an expectancy. This type of claim occurs when the decedent intended to leave a portion of the estate to a beneficiary and a third-party intentionally interfered with the decedent’s plan to the detriment of the intended beneficiary. This cause of action centers around the decedent’s intent, not the fact that a beneficiary lost his or her expected inheritance. Generally speaking, the beneficiary must first look to see if there are other avenues to recover his or her damages (through a will contest in probate court) before seeking to go after the bad-actor for tortious interference.
If you feel that a third-party bad actor has intentionally interfered with a loved one’s estate plan, it is best to speak with an attorney to review the facts and circumstances to see what can be done to right this wrong.