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Probate Litigation

Probate litigation is the legal process of challenging the transfer of a decedent’s estate. A relative or heir may challenge the contents of the person’s will, the appointment of the personal representative on behalf of the will, or the entire contents of the will.

Why do I need to open a probate estate if there is a Will?

A will is a statement of instructions from a decedent as to what is to be done with his assets when he or she dies.  The will must be filed with the court, and a probate estate opened in order to transfer the property to the persons named in the will.   

The same is not true of bank accounts, IRA’s, mutual funds, life insurance, trusts, or any asset which names a beneficiary payable at death.  These are all “probate alternatives”, needing nothing more than a death certificate, valid ID, and the completion of some paperwork in order to transfer assets at death.  These assets pass outside of probate, directly to the named beneficiaries.  If a person has only assets with beneficiaries, then there may be no reason to open a probate estate at all. 

Creditor’s claims in probate:

Probate includes not just passing property to decedents or heirs. The debts of the decedent must be taken care of.  Florida’s probate code includes very specific procedures for the claims of creditors. Taxes, mortgage payments, funeral bills, condominium fees, and other debts of the decedent all must be addressed.   

Generally all of the expenses and obligations of the probate estate must be taken care of before the heirs are entitled to their share of the property.  There are certain assets of the estate which are exempt property which the creditors cannot reach.  The most substantial form of exempt property is the decedent’s primary residence, known as exempt homestead.

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