PROBATE LITIGATION

When a person passes away with or without a Last Will & Testament, it is important that their assets and debts (their "probate estate") be processed through the probate court. This serves several purposes, perhaps the most important of which is to correctly identify the deceased person's beneficiaries and their creditors. This ensures that (1) only those debts which are valid are paid, (2) that the assets are distributed to the proper persons, and (3) that those assets which are distributed are free from any claim by another person or one of the creditors.

Failure to properly pass the deceased's assets through the probate court can have significant negative results, such as making you liable for the deceased person's debts and / or unpaid taxes.

Fortunately, getting most probate estates through the probate process is relatively simple and only takes a few weeks or months.  This is known as the "probate administration". 

In a probate administration, a Personal Representative (known as "Executor" in other states) is appointed by the Court to manage the estate.   Basically, all bona fide debts are paid, the final tax returns are prepared, filed and paid, and then the remaining property is distributed according to the Last Will and Testament, or if there is no Will, according to applicable Florida law.    

However, if there is a disagreement about some aspect of the probate administration, then a second case is opened and takes on the aspects of a lawsuit, or "probate litigation".  The legal battle may be relatively simple, such as whether the person appointed by the Court is legally qualified to serve as the Personal Representative, or it may be very complex and involve multiple issues, such as which one of several potential Wills is the real Will and whether the deceased person had the legal capacity to execute the Will at the time he allegedly did so.  Or it could involve a surviving spouse's attempt to set aside a Last Will and Testament which they do not like.

Probate litigation can be very expensive, emotionally charged and take many months or even years.  Although attorneys' fees are often very high in these types of cases, there is usually a good chance that most or all such fees will be paid from the assets of the probate estate.