Generally, probate litigation involves challenging the administration of the estate of a deceased individual (i.e., decedent). Florida law attempts to ensure estates are closed as soon as possible to avoid a decedent holding title to any property for an extended period.
As a result, the statute of limitations on probate litigation is relatively short. With few exceptions, you must raise claims before an estate is closed. And some claims, like will challenges, must be raised even earlier.
If you are unsure whether you have a probate litigation claim, reach out to BrewerLong as soon as possible. With short deadlines and a high risk of losing the property you are entitled to, you cannot afford to wait.
We have years of experience helping clients through difficult situations implicating business interests, including probate matters.
How Does Probate Work?
When a person dies, their property passes to new owners, often through probate. Probate is the process of paying a decedent’s debts and then distributing the remaining assets. How probate works depends on whether the decedent died testate (i.e., with a will) or intestate (i.e., without a will).
Testate Probate
When someone leaves a will, they usually name an executor as the estate’s personal representative. If that executor is willing and able to serve in the role, they must bring the will to probate court.
If no executor is named or the named executor is unable or unwilling to serve, the court appoints someone else as the estate’s personal representative.
Those who are or may be entitled to take a portion of the estate may challenge the will. If the court determines the will is valid, the representative satisfies debts and distributes assets as per the instructions in the will.
If the court concludes the will is invalid, interested parties may offer an alternative will, which must be found valid as well. When the decedent left no previous will or clearly revoked the previous will, the process continues through intestate succession.
Intestate Probate
When someone dies without a will, their estate is distributed according to state law. Someone must notify the probate court about the individual’s death to open the estate.
The court then appoints an administrator to serve as the estate’s personal representative. Although the law prefers a spouse or close relative, almost anyone can serve as administrator.
The administrator inventories the assets and liabilities in the decedent’s estate. Next, they satisfy debts and distribute remaining assets according to Florida’s intestate succession laws. Assets should go first to the decedent’s surviving spouse.
If the decedent left no surviving spouse, assets pass to their surviving relatives, moving outward from children.
Overlapping Elements of Probate
Many elements of the testate and intestate probate processes are the same. Each is managed by a personal representative, who must take an oath promising to act in the estate’s best interests. The court may also order the representative to pay a bond to ensure they diligently complete their work.
Once appointed, the personal representative notifies interested parties that the estate has been opened. Interested parties include creditors whose claims the representative can reject if illegitimate. The representative must also notify legal heirs and will beneficiaries to provide the opportunity to raise issues with the court.
A Thank You From BrewerLong!
BLVUDA2G2
When you use this code while submitting your consultation request online, we’ll add an additional 15 minutes to your attorney consultation.
This code helps us understand the impact of our content. By using it, you’ll assist us in tracking the effectiveness of our blog and its value to our readers.
What Is Probate Litigation?
There are many reasons you may litigate in probate court. Common probate litigation claims include challenging:
- The validity of the will;
- A representative’s treatment of a creditor’s claim;
- The appointment of a personal representative, trustee, or guardian;
- The interpretation of a will or trust;
- The conduct of a personal representative, guardian, or trustee; or
- The ongoing validity of a trust.
Trust beneficiaries may also sue to modify or reform a trust, particularly if the trust is no longer meeting its purposes.
What Is the Statute of Limitations on Probate Litigation?
Most legal claims must be filed within a specified period set by statute. If you do not file during that period, you lose your chance.
Probate Statutes of Limitations
Creditors have two years from the decedent’s death to bring claims against the estate. Otherwise, you generally must raise estate-related claims during administration. Objections to the appointment or conduct of the personal representative must be filed before the estate is closed.
You have three months from receiving notice of estate administration to object to the will’s validity. This period can only be extended if the representative misstated the period for filing, not based on the representative’s misconduct. Replacing the personal representative does not extend this period unless a new will is admitted to probate.
If you did not receive notice, you may have more time to file. You may also have options if the personal representative committed fraud or someone prevented you from receiving what you were entitled to. Fraud-based claims are subject to a four-year statute of limitations and are typically raised against the fraudulent actor, not the estate.
Other probate actions, like filing for breach of fiduciary duty against a trustee, generally have longer statutes of limitations. However, many of those limitations periods are circumscribed if you receive adequate notice of the issue. For example, you must challenge a trustee’s disclosed conduct within six months of the disclosure.
The Discovery Doctrine
There is one significant exception to statutes of limitations: the discovery doctrine. Under this doctrine, you can file a legal claim after the statute of limitations expires if you discover the basis for the claim after it is too late to file.
Note that you cannot introduce a later-discovered will if the estate has been closed, even if the will was concealed through wrongdoing. In that case, your action would be against whoever concealed the will.
To use the discovery doctrine, you must not have known about the facts giving rise to the claim in time to file. You also cannot have failed to discover the facts because of your own negligence or lack of diligence. In other words, if the claimant did not know and couldn’t reasonably have known about the potential claim, it is an exception to the statute of limitations and can extend the deadline.
BrewerLong Can Help
Fully understanding how long you have to raise a probate litigation claim and in what circumstances you can still raise a claim if the deadline passes is challenging, even for those with a legal background.
At BrewerLong, we have over a decade of experience helping our clients navigate complex issues, including working through Florida’s complex web of probate deadlines. Contact us as soon as possible to ensure you do not miss your chance to file.
This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel–hopefully BrewerLong.
Rate this Post
Loading...