Miami Probate Litigation Lawyer
Probate litigation arises when an otherwise uncontested probate turns adversarial in nature among the heirs of an estate of a loved one. Probate litigation is carried out under Florida’s Probate Code and may involve application of several statutory rules of law to a complex set of facts. Procedures in probate litigation differ than those used in everyday litigation.
Removal of Personal Representative
A personal representative is the person who is selected to be charge of administering the affairs the estate. However, sometimes it is necessary to remove a personal representative when they fail to live up to our law. Grounds to remove a personal representative and replace him/her with a successor personal representative exist if the personal representative:
- Fails to account of the sale of property or produce inspection of the estate assets
- Fails to comply with a court order not overturned on appeal
- Wastes the estate
- Fails to give bond or security
- Commits a felony
- Has adverse interests against the estate
If a personal representative has been negligent in performing his/her obligations, they can be held liable in a surcharge proceeding.
A personal representative of an estate must act prudently in the investment and management of estate property. This includes a duty to continue running the decedent’s business in order to preserve its value and acting prudently with the decedent’s other investments such as stocks and securities. A personal representative should employ licensed professionals when needed, such as attorneys, accountants, auditors, appraisers, investment advisors, etc. to help carry out these tasks. A surcharge proceeding is a proceeding designed to hold a personal representative personally liable for damage to the estate resulting from a breach of the foregoing duty.
Wrongful Death Claims
Wrongful death claims are brought by the personal representative of the de dent’s estate and are governed by Florida’s Wrongful Death Act. A personal representative has a duty to pursue a wrongful death claim on behalf of the decedent’s estate if a cause of action exists and can be economically pursued on behalf of the estate and the survivors. Wrongful death claims often arise as a result of medical malpractice. Damages recoverable from death claims include lost earnings, loss of net accumulations such as pension beneficiaries as well as medical and funeral expenses.
Wills and Trusts Contests
The right to devise property is constitutional right protected by the Florida Constitution however, there are numerous grounds exist to challenge the validity of a will and any person who may reasonably be expected to be affected by the outcome of the particular proceeding may contest the validity of a will. For example, will contests can arise when a will isn’t executed properly, such as when it is not signed in the presence of two witnesses or when the will maker or testator is not of sound mind. Age, failing memory, and physical disabilities do not necessarily mean that a person lacked the capacity to make a will.
The requirement that the testator be of sound mind means that he has the ability to understand generally the nature and extent of his property, the relationship of those who receive the property and the overall practical effect of the will. It has been said that even a lunatic may make a will in a lucid interval. All or part of the will may be invalid If the testator lacks the capacity to a make it or was delusional when he made it. Additionally, a will is void if it was made as a result of mistake, fraud, undue influence or duress.
Malicious Interference With a Will or Trust
Malicious Interference with a will or trust is a tort that occurs when someone intentionally interferes with someone’s expected inheritance. In another word, but for someone’s tortious interference, the gift would have been received. Tortious interference may arise in a number of ways including forgery, alternation of a will or trust, destruction of a will or trust, intentionally losing a will or trust, causing the testator to do something that he would not otherwise do with the will or trust. The following have all been found to constitute malicious tortious interference:
- The interference caused the decedent to make a will that excluded the plaintiff
- The interference caused the decedent to execute a will leaving his entire estate to the defendant, thus depriving the plaintiff of his expectancy
- The decedent failed to amend his will in favor of the Plaintiff because of the interference.
- The decedent would have carried out his intent to give a gift but for the defendant’s actions.
A person who is found liable for interfering with another’s inheritance is 100% responsible for the damages. Probate litigation requires a skilled Miami probate attorney to navigate the numerous requirements and considerations involved in each claim.
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