Probate & Property Battles Upon Death

When someone dies, it’s customary that his or her assets undergo a court-supervised process called probate. In probate court, the estate is verified and administered to be justly distributed among heirs.

Here are a couple of standard Florida probate rules. They’re important to keep in your back pocket:

Not all assets go through probate.

Only a handful of assets are exempt from probate in the state of Florida.

However, the vast majority of civilians are required to take this legal path, whether there is a legal will at hand or not. Some assets which may be in the exception include those within a living will or trust and property covered by a “joint tenancy” arrangement.

For example, a couple sharing ownership of a residence or multiple persons sharing a single bank account would avoid probate. However, the latter needs to have a “rights of survivorship” to be eligible, especially if there are children involved.

Further, a living trust needs to be titled appropriately to avoid probate. Similar to the title on a house or car, the person whose name is listed as the “owner” must be listed before the death, or upon death. A qualified Florida probate attorney can help you out with that.

Having an attorney present during probate is compulsory.

It’s recommended to consult a lawyer with legal processes as complex as probate. However, in Florida, it’s not just a convenience but also a mandatory requirement.

The court system doesn’t allow interested parties to attend any such hearings without an attorney. However, a few exceptions to this rule exist.

In intestate cases, the surviving spouse is first in line.

When someone dies without a will, or intestate, Florida probate states that the surviving spouse (must be legally married) receives the entire estate. This is almost always the case unless there are descendants (children, grandchildren, or great-grandchildren).

Further, these descendants must be from the couple’s marriage or a different relationship. In the case of descendants, the surviving spouse takes half while the other half is split among the descendants, per stirpe.

If both spouses died, for example, if they were in a tragic plane crash, the descendants would share everything. In the absence of these two groups of people, there being children or both spouses dying simultaneously, the estate passes onto the surviving spouse in its entirety.

Solving inheritance disputes

A will stipulates the last wishes of the deceased. However, beneficiaries can still choose to contest the will in a Florida court for any of the following reasons:

Poor mental capacity at signage

It is a state requirement that a person needs to have full mental capacity for a will to hold as valid.

However, the degree of mental capacity is objective during life but subjective in hindsight.

If the plaintiff, through a probate attorney, can prove that the mental ability of the deceased was affected, then a court may dismiss a will. This may be due to intoxication (which also includes prescription medicine), disease (dementia, Alzheimer’s, etc.), disability, or brain injuries.

A good probate lawyer can also protect you in court if a greedy relative is contesting a valid will. It’s especially smart to hire a lawyer if the will at hand leans in your favor.


If there are doubts regarding the authenticity of signatures on the will itself, or accompanying legal documents, the concerned party can contest the will on account of forgery.


This entails disputing a will’s validity on the grounds of undue influence, doubts over the drafting party’s competence, or conflicting additional documents.


If a beneficiary lies or conceals information, which influences how the testator allocates the estate, then there is a strong case for invalidation due to false pretenses.

Improper execution

If the witnessing, drafting, and signing raises eyebrows, anyone can contest the will for improper execution.

Florida law requires three signatures on a will, two from two witnesses and one by the testator. The testator’s signature should come at the end of the document alongside his or her name. A lawyer can help you understand if the will in question violates any of the fundamentals.

On the other hand, intestate probate abides by Florida’s rules of intestacy. You can read more about them around our website.

Be sure to contact an experienced Florida probate attorney to understand what legal paths you may take to oppose a will. An experienced attorney will be especially helpful when it comes to an intestacy inheritance.