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Probate Litigation



Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries.


Probate is required to transfer ownership of the decedent’s probate assets to his or her beneficiaries. If the decedent passed away with a valid will in place, unless the will is admitted to probate in the court, it will be ineffective to transfer ownership of probate assets to the decedent’s beneficiaries. If the decedent passed away without a will, probate is required to transfer ownership of the decedent’s probate assets to those entitled to receive them under Florida law.


Sometimes conflicts arise before or during the probate process.  When these conflicts result in formal claims or advisory proceedings being filed, they will involve what is referred to as estate litigation or probate litigation.



When a decedent’s Last Will and Testament is entered for probate, there are many requirements involved in the probate process by Florida law.  Creditors and heirs are all given various rights, privileges and limitations that must be strictly adhered to.  The Will itself is available for viewing by any Party.  Consequently, everyone involved may not be content with the result when the benefits of the Will are read in conjunction with the legal mandates.

Probate litigation often involves a will contest. In Florida, probate litigation is one of the most contentious areas of the law, used by surviving family members to right any wrongs they believe have occurred.


Usually, Florida probate litigation is first contemplated by an individual when they receive a Notice of Administration.  This is a formal document that notifies all interested parties of the death of the decedent, the submission of a Will to probate, and that an objection to the probate proceedings must be commenced within a certain period of time or be forever barred.


The recipient of a Notice of Administration will have a unique situation, and may have a claim based on a variety of legal grounds (e.g. lack of capacity, undue influence, duress, or improper/invalid will execution).


Once an individual is served with a Notice of Administration, they have a very limited time period, usually 20 days, to respond, object, and/or raise any claims.  Once that time period passes, any promises, representations or settlement conversations regarding any estate disputes or disagreements, are time barred unless the Parties have entered into an official written and executed settlement agreement.




probate litigation

There are several grounds for contesting the admission of a decedent’s will to probate, including:

  • Mistake in Execution –Florida Statute § 732.502 sets forth the execution requirements for a will to be valid in the State of Florida.  If any of these requirements are not met, then the document is not a valid will under Florida law.

  • Undue Influence – an undue influence claim challenges whether the person making the Will did so freely and without being coerced by a person who was in a position of trust and control.

  • Lack of Testamentary Capacity - a lack of capacity claim is based upon the belief that at the time the Will was executed, the person making the Will did not have the required mental ability to comprehend a) the amount and type of his/her assets; b) the beneficiaries, such as family members and loved ones, who would typically receive such property; and c) how the Will distributes the assets.


The standard for “testamentary capacity” is not as high as general competency. A person only needs to comprehend the type and extent of his/her assets. Lack of capacity can be the result of the natural aging process or the result of a person being on a substantial amount of medication, e.g. heavy morphine to treat end-stage cancer. Lack of capacity litigation may rely on medical records and any irrational conduct of the testator prior to executing the Will.​

In addition to Will contests, probate litigation may involve:


  • Will Construction – sometimes Wills are ambiguous; beneficiaries have since died or cannot be located; or the document does not properly distribute the entire estate. In these situations, the assistance of the Court is sought to determine how a decedent’s estate should be distributed.

  • Determination of Heirs – sometimes a decedent leaves no will and had little contact with his family. The heirs (as defined by Florida’s intestacy statutes, Fla. Stat. §§ 732.101-111) need to be determined by the court. Sometimes, the decedent has formerly unacknowledged children who wish to prove paternity/maternity and make a claim to the estate.

  • Elective Share Litigation – the surviving spouse of a person who dies residing in Florida has the right to a share of the elective estate. Generally, absent a valid pre-marital agreement, a surviving spouse has the right to claim 30% of the elective estate.

  • Breach of Fiduciary Duty – a personal representative is the person, bank, or trust company appointed by the court to be in charge of the administration of a decedent’s probate assets. Florida law imposes many duties and obligations on a personal representative in the administration of a decedent’s probate estate. Failure to properly administer an estate, either by overt act or by omission, can be consequential. Sometimes the remedy sought is removal of the fiduciary.  When funds have been wasted or mismanaged or excessive fees have been taken, the remedy can be a surcharge action. For a list of the duties and powers of the personal representative, see Florida Statute §733.601-619.

  • Removal of Fiduciary – a fiduciary may be removed by the Court for cause.

  • Surcharge Action - the purpose of a surcharge against a fiduciary is to restore the losses sustained by the fiduciary’s breach of duty.

  • Accounting – beneficiaries have the right to an accounting. If one has not been provided, then a beneficiary may seek the court’s assistance to compel the fiduciary to account for the estate assets. If an accounting has been provided and is objectionable for any reason, then the beneficiary may object to the accounting.

Contact Rosenberg, Cummings & Edwards PLLC

Contact Rosenberg & Cummings  PLLC

802 NE 20th Ave,

Fort Lauderdale, FL 33304


Tel:  (954) 769-1344

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