The Ocala Probate Lawyer
The Coleman Law Firm, PLLC
10161 Centurion Parkway N., Suite 310
Jacksonville, FL 32256
Telephone:  (904) 448-1969

Toll Free: (866) 510-9099
Our 30+ years experience can help you achieve piece of mind.

Ocala Florida Probate and Trust Litigation Attorneys and Lawyers

Florida Probate Litigation and Florida Trust Litigation

The Florida probate and trust litigation attorneys with the Ocala Florida Probate Lawyer and The Coleman Law Firm, PLLC handle Florida probate litigation, trust and guardianship litigation, including will contests, probate litigation, trust litigation, power of attorney abuse, inheritance disputes and trust disputes.  The firm will handle a select number of contingency fee cases for wills disputes, probate litigation and trust litigation.

If you need the assistance of a Florida Probate Lawyer for probate litigation, will contests, or other matters relating to a Florida probate proceeding in Ocala, or Marion County, Florida, please call us toll free at 1-866-510-9099.

The following information is designed to be a brief introduction to the issues that can become involved in Florida probate litigation and Florida trust litigation. 

A. Florida Probate Litigation

B. Florida Trust Litigation

Florida Probate Litigation 

The experienced Florida probate litigation lawyers and attorneys at The Coleman Law Firm, PLLC, have more than 30 years experience representing beneficiaries and personal representatives in all the courts of Florida dealing with probate litigation matters, wills contests, inheritance disputes, breach of fiduciary duty, removal of personal representatives, and other probate related litigation matters.

There are two major types of litigation in Florida probate, one is a will contest and the other involves estate litigation.

Will Contests

What is a will contest?

A Will contest is a form of litigation challenging the admission of a Will to probate or seeking to revoke the probate of a Will that is already pending before the probate court. A person cannot challenge the validity of a Will simply because he or she does not like its provisions, or did not, in their opinion, get what they wanted. Challenging the validity of a Will is not contingent on the elements of "fairness" or the reasonableness of its provisions or on the timing of distributions from the probate estate (such as if you prefer an immediate distribution, but the Will provides for you to receive your distribution in multiple distributions at several year intervals).

If you need an Ocala probate attorney for assistance with a will contest in Ocala or Marion County, Florida, please call us toll free at 1-866-510-9099.

A Will is likely to be attacked on the basis that a person lacked mental capacity (senile, dementia, delusional, unsound mind) at the time the documents were created, that the Will maker was subjected to fraud, coercion or undue influence during its creation and implementation, that there are ambiguities in the document, or the Will is a forgery or does not conform to legal requirements, such as the manner in which it was signed, or the number and nature of the witnesses. 

If the Will is invalidated by the court, the court may disallow only that part of the Will that was challenged or it could invalidate the entire Will. The assets of the probate estate might in that case be distributed as if the person died without a Will (intestacy), or pursuant to the distribution provisions of a prior Will, depending on the specific facts and circumstances.

When someone files an objection to the Will being probated, or produces a different Will, what is known as a "Will contest" has begun. Will contests are not rare. Even though few people are successful challenging a will, such contests can be extraordinarily costly and create substantial delays in the completion of the probate of the estate.

You can not legally contest a Will just because you don't think the results provided by the will are not fair or are unreasonable. For example, if you feel your recently deceased next door neighbor's out of state children are awful people who didn't give her proper respect and they do not deserve to receive any assets from her estate, that will not provide a sufficient basis to challenge her will. To have the right to contest a Will a person must have legally recognized "standing" to object.

A person must have legal “standing” to contest a Will. A child who was disinherited by the Will of an angry parent, or perhaps by a kindly parent who felt that the local charity rather than his children would benefit more from his assets, would have legal standing to initiate a "Will contest". Or, should a Will give one sibling a disproportionately large share of a parent's estate and the other child, or children, a disproportionately small share, the ones receiving less than their proportionate share have standing to challenge the will. Another example would be if a later Will is less favorable to a beneficiary than an earlier Will, or no Will at all, then that person has legal standing to challenge the later Will.

The filing of a Will contest sometimes is directed at removing the personal representative (executor) appointed by the Will, in an effort to have a different person or trust company serve as Personal Representative for the estate, or as a trustee of Trusts created by the Will.

Most of the challenges to invalidate a Will are filed by potential heirs or beneficiaries who were entitled to little or nothing from the terms of the Will that is being probated. Will challenges must be filed in probate court within a certain amount of time after receiving notice of the death or petition to admit the Will to probate.

The most common challenges to a Will include:

(1) the Will was not properly written, signed or witnessed, according to the statutory requirements

Lack of Proper Formalities.
Proper execution of a will requires that the will be signed by the testator and witnessed by two witnesses, who also sign the will. A will can be contested on the grounds that it was not properly drafted, signed, or witnessed in accordance with the applicable requirements.

(2) the decedent lacked mental capacity at the time the Will was signed

Lack of Capacity. Under Florida law, a testator is required to have mental competency to make a will and to understand the nature of his or her assets and the people to whom the assets are going to be distributed. A will can be declared void if lack of capacity can be proven. Typically, incompetence is established through a prior medical diagnosis of dementia, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the deceased around the time the will was executed.

If you need a Florida probate lawyer to assist you with a will contest involving lack of capacity of the person making the will, in Ocala, or Marion County, Florida, please call us toll free at 1-866-510-9099.

(3) there was fraud, duress or undue influence exercised by someone who had a special relationship with the deceased


Undue Influence. Undue influence occurs when the testator is compelled or coerced to execute a will as a result of improper pressure exerted on him or her, typically by a relative, friend, trusted advisor, or health care worker. In many cases, the undue influencer will upset a long established estate plan where the bulk of the estate was to pass to the direct descendants or other close relatives of the decedent. Some undue influencers are new friends or acquaintances of the decedent who “befriend” the decedent in the last months or years of life, typically after the decedent has suffered some decline in mental ability. In other situations, one child of the decedent, often a caregiver, will coerce the decedent to write the other children out of the will. Undue influencers can also be health care workers or live in aides who implicitly or explicitly threaten to withhold care unless the estate plan is changed in favor of the health care worker.

(4) the Will was a forgery

(5) breach of fiduciary duty

Breach of Fiduciary Duty. The personal representative of an estate owes the beneficiaries of the estate certain fiduciary duties of honesty, prudence, and loyalty. When those duties are violated by a personal representative, a bequest may be put in jeopardy. The attorneys of The Coleman Law Firm, PLLC are experienced in representing beneficiaries and personal representatives with the following issues:

a. Failure to follow the Florida Probate Code, the Florida Rules of Probate Procedure, or an order of the Florida probate court;

b. Probate Fraud;

c. Improper investments;

d. Self dealing;

e. Excessive compensation;

f. When the personal representative’s negligence or probate fraud results in a financial loss to the probate estate, the probate court can remedy the situation through a monetary award against the personal representative or others involved in the wrongdoing.

g. The Florida probate court can also remove the personal representative if cause can be shown.

If you need a Florida probate lawyer to assist you with a lawsuit for breach of fiduciary duty in Ocala, or Marion County, Florida, please call us toll free at 1-866-510-9099.

(6) elective share

Florida Spousal Elective Share. The Florida elective share provides surviving spouses with a portion of a deceased spouse’s estate according to a detailed formula, based on the probate and non-probate assets of the deceased. If the surviving spouses is unhappy with the inheritance created by the decedent's estate plan, the surviving spouse can instead "elect" to take the Florida elective share, if the election is made in a timely manner.

Under Florida law, the elective share is 30% of the "augmented estate."  The augmented estate includes the probate estate, and certain other assets owned or controlled by the decedent at the time of death that are not included in the probate estate.  For instance, a bank account owned by the decedent that was subject to a payable on death designation is not a part of the probate estate, but would be included in the "augmented estate."

Most surviving spouses will benefit from retaining an experienced Florida probate litigation lawyer to ensure that the Florida elective share is computed properly and distributed according to Florida probate law.

The surviving spouse has 6 months from the receipt of the estate's notice of administration to make the Florida elective share election. Once the election is made, the personal representative of the probate estate is required to prepare and file the elective estate inventory, which is filed with the Florida probate court.

Not only can wills be challenged on these grounds, a trust can be challenged for essentially the same reasons.  So can a real estate deed or a beneficiary designation on a financial account that were changed during the lifetime of the decedent. There are many situations where the undue influencer will trick or persuade a weakened person to sign over valuable Florida real estate, a bank account, or other property directly to the influencer, in the hope that they will be long gone before the wrongdoing can be discovered. 

Sometimes, the undue influencer will be added as a beneficiary on bank accounts in place of the heirs to whom the decedent intended the account to pass. If the wrongdoing is discovered prior to the victim's passing, a common way for a loved one to start to correct the situation is to create a Florida plenary guardianship, which will allow the guardian to use the Florida probate court's jurisdiction to reclaim assets that were fraudulently removed. If an estate plan was also changed because of undue influence, the guardianship will also allow evidence to be collected for use at a subsequent will contest proceeding that can be filed in probate court.

The representation of beneficiaries, personal representativescreditorsor other interested persons in Florida probate litigation matters, including will contest cases, by the experienced Ocala Florida probate and trust litigation attorneys with The Coleman Law Firm, typically is undertaken on an hourly rate basis. However, in some situations our experienced Ocala Florida probate litigation attorneys will take selected cases involving a beneficiary of a will, trust or intestate estate (an estate where the decedent died without a will or trust in place), or others involved in a will contest or other probate litigation, on a contingent fee basis, or some other alternative billing arrangement. In that situation, there is no attorney's fee obligation incurred by the beneficiary, unless there is an actual recovery for the beneficiary from the Ocala Florida probate litigation.  

If you would like to learn more about possible representation on a contingent fee basis, or otherwise, or if you would like to learn how we can help you with your Florida probate litigation, will contest, inheritance dispute, or other Florida probate related litigation, please call us toll free at 866-510-9099, or email us at 
Info@TheColemanLawFirm.net.

Estate Litigation

Estate litigation arises when a lawsuit is required to be filed on behalf of the decedent or the decedent's probate estate or heirs, when a third party files suit against the probate estate.

Estate litigation may include opening a Florida probate estate to file a wrongful death lawsuit against those responsible for the death of the decedent. Florida estate litigation can also include situations where the heirs, family members and beneficiaries are not disputing what the decedent did with his or her assets through the Will or trust; instead, the estate litigation may be a lawsuit filed by the Florida probate estate against third parties who may be indebted to the decedent, who violated the terms of a contract with the decedent, or who refuse to turn over property belonging to the Florida probate estate. Typcially, such litigation involves someone other than the heirs and beneficiaries of the estate, though heirs or beneficiaries may be involved.

Estate litigation also includes situations where third parties may file suit against the probate estate for debts the decedent owed to the third parties, or if the decedent may have caused injury to another, or breached his contractual duties to another.



Florida Trust Litigation 

Some people use trusts to provide for the distribution of their assets at death, or during life, rather than a Last Will and Testament. The primary difference in using a trust to provide for the distribution of assets at death, and using a will for that purpose, is that the administration of the will through Florida probate is supervised by the Florida probate court. The trustee named in the trust document typically administers the trust after the death of the trustmaker, without direct supervision by the Florida probate court.

If you need the assistance of a Florida probate lawyer for assistance with a trust litigation matter in Ocala, or Marion County, Florida, please call us toll free at 1-866-510-9099.

Other than avoiding the probate process and the supervision by the Florida probate court, the same principals of law apply to the administration of trusts as are applicable to wills. Trust administration is governed by The Florida Trust Code, Chapter 736, Florida Statutes.

A Florida trust that is used to provide for the distribution of assets after death must be signed with the same formalities as a will. The trustmaker (formally called the “grantor” or “settlor”) is subject to the same requirements for legal capacity, competence, and being free of undue influence, as a person making a will in Florida. The language of a trust document, just as with a will, may be subject to varying interpretations. The trust document is also subject to Florida’s elective share statutes, even though the trust is not automatically subject to the probate court's jurisdiction.

The trustee of a trust owes the beneficiaries of the trust the same fiduciary duty that a personal representative owes to the heirs and beneficiaries of a probate estate.

The Ocala Florida trust litigation lawyers and attorneys with The Coleman Law Firm are experienced in the representation of Florida trustees, beneficiaries, or others, who may challenge a Florida trust or the actions of a Florida trustee for any of the following reasons, among others:

1. Improper trust formation or failure to sign the trust with proper witnesses, notary, or other formal requirements required by the Florida Trust Code;

2. Lack of capacity of the trustmaker;

3. Undue influence over the trustmaker;

4. Distribution of assets in violation of Florida Statutes, including the spousal elective share;

5. Judicial interpretation of unclear, confusing, or ambiguous language in the trust document;

6. Trust reformation or modification;

7. Breach of fiduciary duty by the trustee for:

a. Failure to make proper or timely distributions;

b. Failure to make proper or timely accountings;

c. Failure to administer the trust in the manner required by the trust document;

d. Failure to follow the prudent investor rule or making improper investments;

e. Self dealing;

f. Excessive trustee compensation.

Tortious Interference with a Prospective Inheritance

A beneficiary, or prospective beneficiary, in Florida, may also file a lawsuit against someone who interferes with that beneficiary’s expected lifetime gift or distribution at death. The cause of action is called "tortious interference with a prospective inheritance."  The prospective beneficiary must show that the deceased person had a specific intent to make the gift or distribution, and that the deceased person would have made the gift or distribution but for the actions of the other individual. Such lawsuits are filed in the Florida probate court with proper jurisdiction by filing a complaint with the clerk of the court.

Florida Statutes provide that someone who successfully contests a trust, or the actions of a trustee, generally can recover attorney’s fees and costs of litigation from the trust estate.

Attorney's fees for trust litigation lawyers and attorneys who typically represent those contesting a trust or defend trustees of trusts, are usually determined on an hourly rate fee basis. In some circumstances, we may agree to represent someone contesting a trust, or the actions of a trustee, based on an attorney's fee that is a contingent fee.  In such situations, there is no attorney's fee charged unless there is a recovery for our client.

If you feel you have a legitimate complaint about the improper actions of a trustee, or the meaning of the terms of a trust, or whether the trust is valid under Florida law, or if you are a surviving spouse who was not treated fairly by the terms of a trust, or if you are a trustee accused of improper conduct in the exercise of your trustee’s responsibilities, please call us toll free at 866-510-9099 to discuss with our experienced trust litigation attorneys and lawyers how we might assist you in protecting your rights or actions.

 

Florida Counties and cities in which Ocala Florida probate lawyers and attorneys, probate litigation, trust litigation, will contests, inheritance dispute attorneys and lawyers offer Ocala Florida probate litigation and Florida trust litigation services:

Alachua

Gainesville, Alachua, Hawthorne, High Springs, Waldo, Newberry, Micanopy

Bay

Panama City, Panama City, Beach, Lynn Haven, Youngstown

Baker

Macclenny, Glen Saint Mary

Bradford

Starke, Brooker, Hampton

Brevard

Cocoa, Cocoa Beach, Merritt Island, Titusville, Melbourne, Palm Bay, Cape Canaveral, Satellite Beach, Rockledge, Barefoot Bay, Indialantic, Malabar

Broward

Ft. Lauderdale, Davie, Sunrise, Weston, Coral Springs, Pompano Beach, Hollywood, Hallendale, Plantation, Dania Beach, Coconut Creek, Deerfield Beach, Lauderhill, Lighthouse Point, Margate, Miramar, Oakland Park, Pembroke Pines, Tamarac, Wilton Manors, Hillsboro Beach, Pembroke Park, Cooper City, Port Everglades, Sea Ranch Lakes, Southwest Ranches

Calhoun

Blountstown

Charlotte

Punta Gorda, Charlotte, Port Charlotte, Palm Island

Citrus

Crystal River, Homosassa Springs, Inverness

Clay

Orange Park, Middleburg, Green Cove Springs, Keystone Heights, Penny Farms

Collier

Naples, Marco Island, Everglades City, Golden Gate, Immokalee, Palm River Estates, Ochopee

Columbia

Lake City, Fort White

DeSoto

Arcadia, Brownville, Fort Ogden, Hull, Pine Level, Platt

Dixie

Cross City, Horseshoe Beach, Old Town

Duval

Jacksonville, Jacksonville Beach, Atlantic Beach, Neptune Beach

Escambia

Pensacola

Flagler

Palm Coast, Flagler Beach, Bunnell, Beverly Beach, Marineland

Franklin

Apalachicola

Gadsden

Quincy, Chattahoochee

Gilchrest

Trenton

Glades

Moorehaven

Gulf

Port St. Joe, Wewahitchka

Hamilton

Jasper, White Springs

Hardee

Wauchula

Hendry

Clewiston, LaBelle

Hernando

Brooksville, Weeki Wachi

Highlands

Avon Park, Sebring, Lake Placid, Leisure Lakes

Hillsborough

Tampa, Plant City, Temple Terrace, Apollo Beach, Brandon, Lutz, Ruskin, Sun City Center, Riverview, Dover, Thonotosassa, Ybor City

Holmes

Bonifay

Indian River

Vero Beach, Indian River Shores, Fellsmere, Sebastian

Jackson

Marianna

Jefferson

Monticello

Lafayette

Mayo

Lake

Altoona, Clermont, Eustis, Fruitland Park, Lady lake, Leesburg, Minneola, Mount Dora, Tavares, Umatilla

Lee County

Fort Myers, Bonita Springs, Cape Coral, Fort Myers Beach, Sanibel, Boca Grande, Estero, San Carlos Park, Lehigh Acres, Waterway Estates

Leon

Tallahassee

Levy

Bronson, Cedar Key, Chiefland, Williston, Yankeetown

Liberty

Bristol

Madison

Madison

Manatee

Bradenton, Anna Maria Island, Bradenton, Holmes Beach, Longboat Key, Palmetto, Myakka City

Marion

Ocala, Leesburg, Belleview, Citra, Dunnellon, Salt Springs, Weirsdale

Martin

Stuart, Sewall’s Point, Hobe Sound, Jensen Beach, Jupiter Island, Ocean Breeze Park, Palm City

Miami-Dade

Miami, Coral Gables, Coconut Grove, South Miami, Kendall, Homestead, North Miami, North Miami Beach, Miami Beach, Hialeah, Miami Shores, Miami Lakes, Aventura, Bal Harbour, Bay Harbor Islands, Hialeah Gardens, Key Biscayne, Pinecrest, Surfside, Cutler Bay, Doral, Golden Beach, Indian Village, Islandia, Medley, Miami Gardens, North Bay Village, Sunny Isles Beach, Sweetwater, Virginia Gardens, Florida City, Goulds, Biscayne Park

Monroe

Key West, Islamorada, Key Largo, Marathon, Big Pine Key, Key Colony Beach, Sugarloaf Key, Tavernier

Nassau

Fernandina Beach, Amelia Island, Hilliard, Yulee, Callahan

Okaloosa

Fort Walton Beach, Niceville, Cinco Bayou, Destin, Shalimar Valparaiso

Okeechobee

Okeechobee

Orange

Orlando, Lake Buena Vista, Apopka, Edgewood, Maitland, Ocoee, Windemere, Winter Garden, Winter Park, Zellwood

Osceola

Kissimmee, St. Cloud, Celebration

Palm Beach

Palm Beach, West Palm Beach, North Palm Beach, Lake Worth, Boca Raton, Delray Beach, Boynton Beach, Greenacres, Highland Beach, Hypoluxo, Juno Beach, Jupiter, Lake Park, Lantana, Ocean Ridge, Palm Beach Gardens, Royal Palm Beach, Wellington, Pahokee, Tequesta, Riviera Beach, Loxahatchee, Manalapan, Ocean Ridge, Glen Ridge

Pasco

New Port Richey, Bayonet Point, Gulf Harbors, Dade City, Holiday, Hudson, Land O’Lakes, Odessa, St. Leo, Zephyrhills

Pinellas

St. Petersburg, Clearwater, Dunedin, Gulfport, Largo, Oldsmar, Pinellas Park, Safety Harbor, Tarpon Springs, Treasure Island, Belleair, Madeira Beach, North Redington Beach, Seminole, Indian Rocks Beach                  

Polk

Lakeland, Auburndale. Bartow, Eagle Lake, Fort Meade, Haines City, Lake Alfred, Lake Wales, Winter Haven, Frostproof, Polk City, Highland Park, Indian Lake Estates

Putnam

Palatka, Interlachen

Santa Rosa

Gulf Breeze, Milton

Sarasota

Sarasota, Longboat Key, North Port, Venice

Seminole

Altamonte Springs, Casselberry, Lake Mary, Longwood, Oviedo, Sanford, Winter Springs

St. Johns

St. Augustine, St. Augustine Beach, Ponte Vedra Beach, Nocatee, Crescent City, Melrose, Pomona Park, Welaka

St. Lucie

Fort Pierce, Port St. Lucie

Sumter

Wildwood, Bushnell, The Villages

Suwannee

Live Oak

Taylor

Perry, Steinhatchee

Union

Lake Butler

Volusia

Daytona Beach, Ormond Beach, New Smyrna Beach, Deland, Deltona, Edgewater, Holly Hill, Ponce Inlet, Port Orange

Wakulla

 

Walton

DeFuniak Springs, Seaside

Washington

Chipley

 

 

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