“Probate” is the Court-supervised process of transferring assets following a death. It can involve a will being accepted by the Probate Court, or it can proceed without a will if none exists. The process includes locating all assets, addressing all debts, and distributing assets to the beneficiaries.
“Probate litigation” includes any type of dispute by beneficiaries or others regarding inheritance, administration of an estate or the validity of a will, as well as pre-death transfer of assets issues. It also generally refers to trust litigation, which includes all issues relating to living trusts and their administration.
A will can be challenged, or “contested” in court following the death of the “testator” (the one who makes a will) to question the competency of the person signing (executing) the will, to question whether that person was unduly influenced in making the will, or to challenge other execution issues.
A “living trust” (also called a revocable trust, or a revocable living trust) is an optional way to plan your estate, including the transfer of property at death. It provides more flexibility than a will by its use during your lifetime, by allowing another person (trustee) to control your trust if you cannot, and by controlling how your property is distributed after death, with limitations and restrictions. A living trust usually costs more to create than a will but can preclude the need to have a probate estate, if used properly.
A living trust, or thetrustee,can be challenged by beneficiaries. The proper execution of the trust can be questioned, as may the competency of the person setting it up (settlor). Also, beneficiaries can object to how the trustee administers the trust, based upon the many duties required of a trustee in Florida. A trustee can be removed, surcharged, or otherwise directed by the court if the court is requested to rule on a trust dispute.
Trustees or co-trustees of a trust and “personal representatives” (executors) of an estate are fiduciaries with extensive responsibilities to beneficiaries and other interested parties, and they are required to comply with Florida laws and rules of court in fulfilling their duties.
Trustees and personal representatives can respond to demands or allegations of wrong-doing by providing financial accountings and other information, and they can attempt settlements of disputes or appropriately respond in court if litigation is required.
A beneficiary in a probate estate can enforce his or her legal rights through demands to the personal representative by using the “discovery” rules to require information and recordsor, when necessary, by filing a lawsuit against the personal representative (or others) to enforce his or her rights.