Estate litigation

Most people who end up in estate litigation did not want to be there. They wanted the estate handled properly, and at some point it became clear that it was not going to be. A new will appeared that nobody had heard about. A sibling who moved in during the final year now holds everything. An executor stopped returning calls eight months ago and has never produced an accounting.

These disputes are unlike ordinary civil cases in one important respect: the person best placed to explain what happened is not available to testify. The evidence is circumstantial almost by necessity, built from medical records, bank statements, the drafting lawyer's file, and the accounts of people who were present.

Florida law anticipates this. It provides specific doctrines, some of which shift the burden of proof, precisely because the usual evidence is missing. It also imposes deadlines that are far shorter than most people expect, and those deadlines end more valid claims than any legal argument does.

This page sets out what can be challenged, on what grounds, by whom, and by when.

What estate litigation covers

Estate litigation is the contested side of probate and trust work. It includes:

• Challenges to the validity of a will or a codicil
• Challenges to a trust, or to amendments made to one
• Claims that a personal representative or trustee has breached their duties
• Proceedings to compel an accounting, or to object to one that has been given
• Petitions to remove or surcharge a fiduciary
• Disputes over whether an asset belongs to the estate at all
• Homestead determinations and elective share proceedings
• Claims arising from financial exploitation of a vulnerable adult
• Disputed creditor claims against an estate

These are heard in the probate division of the circuit court, usually within the existing administration rather than as a separate lawsuit. The rules of civil procedure apply once a matter becomes adversarial, which means discovery, depositions and, if it goes that far, trial.

Who can bring a challenge

Only an interested person may contest. In practice that means someone whose share would change if the challenge succeeded.

That includes a beneficiary named in the document being challenged, a beneficiary under an earlier will who was cut out by the later one, and an heir who would inherit under the intestacy statute if no valid will existed. It does not include someone who simply disapproves of the outcome, or a person who was told they would inherit but never appeared in any document.

Standing has a practical consequence that is often missed. If the current will is set aside, what governs is the previous valid will, or intestacy if there is none. It is worth working out the result before challenging, because a successful contest sometimes leaves the challenger no better off.

The deadlines that decide most cases

This is the most important section on the page.

When an estate is opened, the personal representative serves a notice of administration on interested persons. An objection to the validity of the will, to the qualifications of the personal representative, or to venue or jurisdiction, must generally be filed within three months after service of that notice. Where formal notice is served instead, the period can be as short as twenty days.

Miss it, and the objection is ordinarily barred. Courts apply this strictly. The merits become irrelevant.

Trusts run on a different clock. Where a trustee provides a trust disclosure document that adequately discloses a matter, a beneficiary generally has six months from receipt to bring a claim about it. The word doing the work there is "adequately". A disclosure that buries or omits the relevant fact does not start the clock, which is why the content of an accounting is examined so closely.

Other periods to be aware of: the elective share must be elected within the earlier of six months after service of the notice of administration or two years after death; a claim for exempt property is generally due within four months of the notice of administration; and creditor claims are barred two years after death regardless of notice.

If you have received any document from an estate or a trustee, the date on it matters. It is worth getting advice quickly rather than waiting to see how things develop.

Lack of testamentary capacity

To make a valid will in Florida, a person must be of sound mind at the moment of signing. The standard is lower than most people assume. The testator must understand, in a general way, the nature and extent of what they own, who their natural beneficiaries are, and the practical effect of the document they are signing.

A diagnosis of dementia does not by itself establish incapacity. Capacity fluctuates, and a person can lack it in the morning and have it in the afternoon. What matters is the state of mind at execution, which is why the drafting lawyer's notes, the witnesses' recollections, and medical records from the days immediately surrounding the signing carry disproportionate weight.

Useful evidence includes hospital and physician records, cognitive assessment scores, medication lists, notes from care facilities, and the accounts of people who interacted with the testator that week. Evidence from months either side is relevant but rarely decisive on its own.

Related to capacity is the doctrine of insane delusion: a will may fail where it was the product of a false belief held against all evidence, such as a fixed and baseless conviction that a child had stolen from them.

Undue influence

Undue influence is the most commonly raised ground, and generally the strongest, because it does not require proving that the testator lacked capacity. It accepts that they understood what they were doing and asks whether the decision was truly theirs.

The legal test is whether the influence amounted to over-persuasion, coercion or force that destroyed the testator's free agency and substituted the will of another. Ordinary persuasion is not enough. Nor is affection, gratitude, or a caregiver's natural closeness. What must be shown is that the document expresses someone else's intention rather than the testator's.

The pattern that recurs looks like this. A person becomes dependent, usually through illness or isolation. One individual, often but not always a family member, takes over the practical management of their life: driving them to appointments, handling the mail, holding the passwords. Access to others narrows. Then the estate plan changes, in that person's favour, prepared by a lawyer the testator had never used, sometimes signed without the family knowing.

The presumption, and why it matters

Proving what happened in a private room is difficult. Florida addresses this with a presumption that shifts the burden.

Where a person who is a substantial beneficiary under the will occupied a confidential relationship with the testator and was active in procuring the will, a presumption of undue influence arises. The burden then shifts to that beneficiary to come forward with a reasonable explanation for their role.

Courts look at a set of familiar factors when deciding whether the beneficiary was active in procuring the document. Among them: presence at the execution; presence when the testator expressed a wish to make a will; recommending the attorney; knowing the contents before it was signed; giving instructions to the drafting lawyer; securing the witnesses; and keeping the will after execution.

Not all of these need to be present, and the list is not a checklist to be scored. But the more of them that appear, the harder it becomes for the beneficiary to explain the transaction as ordinary.

The presumption does not decide the case. It changes who has to explain, which in a case built on circumstantial evidence often changes everything.

Improper execution and formalities

Florida requires that a will be signed by the testator at the end of the document, in the presence of two attesting witnesses, who must sign in the presence of the testator and of each other.

Those requirements are applied strictly. A will that was properly intended but improperly witnessed can fail, and Florida does not have a general doctrine allowing a court to excuse a defect because the intention was clear.

Handwritten wills present a particular problem. A holographic will, written and signed by the testator without witnesses, is not valid in Florida even if it would be valid in the state where it was written. Documents brought from other states are worth examining for exactly this reason.

Florida does now recognise electronic wills executed under its statutory framework, but that framework has its own requirements, and a document signed electronically outside it is vulnerable.

A properly drafted will usually includes a self-proving affidavit signed before a notary, which allows it to be admitted without the witnesses having to testify. Its absence does not invalidate the will but it does open a line of inquiry.

Fraud, duress and forgery

Three narrower grounds appear less often but are decisive where they apply.

Fraud in the execution occurs where the testator was deceived about what they were signing, for example told that a document was a power of attorney or a routine update. Fraud in the inducement occurs where the testator understood the document but was led to sign it by a lie, such as a false report that another child had died or had stolen from them.

Duress involves threats or coercion, including the implicit kind: a caregiver who conveys that support will be withdrawn unless the document is changed.

Forgery is a factual dispute usually resolved by a handwriting examiner working from known exemplars. It is raised less often than families expect, and proven less often still, but where the signature genuinely does not match, it ends the matter.

Revocation and lost wills

A will can be revoked by executing a later will or codicil, or by physically destroying it with the intent to revoke. Disputes arise when the original cannot be found.

Where a will was last known to be in the testator's possession and cannot be located after death, Florida applies a presumption that the testator destroyed it with the intention of revoking it. That presumption can be overcome, but it requires evidence, and establishing a lost will has additional procedural requirements including proof of its contents.

This is a practical argument for depositing the original with the drafting attorney or the clerk of court rather than leaving it in a drawer at home.

No-contest clauses in Florida

Many wills and trusts contain a clause providing that anyone who challenges the document forfeits their inheritance. These are often called in terrorem clauses, and they frighten people out of legitimate claims.

In Florida, they are unenforceable. The statutes provide that a provision in a will penalising an interested person for contesting it, or for instituting other proceedings relating to the estate, is void. The equivalent rule applies to trusts.

That is a deliberate policy choice. The legislature decided it was more important that suspicious documents be capable of examination than that testators be able to deter scrutiny.

So the presence of a no-contest clause is not, by itself, a reason not to raise a genuine concern. It does not follow that every challenge is worth bringing, but the clause is not what should decide it.

Trust disputes

Trusts are increasingly where the value sits, and increasingly where the dispute is.

A revocable trust can be challenged on the same grounds as a will: capacity, undue influence, fraud, duress. Florida requires that the testamentary aspects of a revocable trust be executed with the same formalities as a will, so execution defects are also available.

Amendments deserve particular attention. It is common for the original trust to be unimpeachable and a late amendment, made during a period of decline, to be the real problem. Each amendment is examined on its own facts and its own date.

Trust litigation also covers questions of interpretation, whether a trustee has properly exercised discretion, whether distributions are being unreasonably withheld, and whether a trust should be modified or terminated because circumstances have changed.

One structural difference matters: a trust is administered privately, without court supervision. Nobody files an inventory. Nobody publishes a notice. A beneficiary often has no visibility at all unless they ask, which is why the right to information is the foundation of most trust claims.

Breach of fiduciary duty

A personal representative or trustee is a fiduciary. That is a demanding standard, and it applies regardless of whether the person is family, is unpaid, or is doing their best.

The core duties are loyalty, acting solely in the interest of the beneficiaries; impartiality, treating beneficiaries even-handedly rather than favouring one; prudence, in investing and in managing property; and a duty to keep records and inform.

Recurring breaches include:

• Self-dealing. Selling estate property to themselves or a related party, or at less than value.
• Commingling. Mixing estate or trust funds with personal accounts, which is a breach even where nothing is lost.
• Using property personally. Living in the house rent-free, driving the vehicles, occupying the condominium.
• Failing to account. Refusing or ignoring requests for information about what has come in and gone out.
• Neglect. Letting insurance lapse, allowing property to deteriorate, failing to file tax returns, missing deadlines.
• Unreasonable delay. An administration open for years with no explanation is itself evidence of something.
• Excessive compensation. Paying themselves fees not supported by the work done or the statute.

Remedies include surcharge, an order requiring the fiduciary to repay the loss personally; disgorgement of improper fees; removal; and in appropriate cases an order that the fiduciary bear their own legal costs rather than charging them to the estate.

Accountings, and how to compel one

Most disputes begin with an information problem rather than a proven wrong. A beneficiary knows something is off but cannot see the numbers.

In an estate, the personal representative must file an inventory within sixty days of appointment and serve it on beneficiaries, and must provide a final accounting before discharge. An interested person can petition the court to compel these where they are not produced.

In a trust, a qualified beneficiary is entitled to a complete copy of the trust instrument and to annual accountings of the trust's assets, liabilities, receipts and disbursements. A trustee who does not provide them can be compelled to do so.

Objections to an accounting are where cases are frequently won. The questions asked are ordinary ones. What is this disbursement for? Why was this property sold at this price to this buyer? What supports this fee? Where did this transfer go? An accounting that cannot answer them tends to lead somewhere.

Because the six-month trust limitation period runs from adequate disclosure, an incomplete accounting can also mean the clock never started, which cuts both ways for a trustee hoping the matter has gone quiet.

Removing a personal representative or trustee

Removal is available on statutory grounds. These include failure to comply with a court order, waste or mismanagement, failure to account, physical or mental incapacity interfering with the duties, holding conflicting or adverse interests that will or may interfere with administration, and, for a personal representative, the discovery that they were never qualified to serve.

Removal is not granted because beneficiaries are unhappy or because relationships are difficult. Courts want to see conduct rather than friction. But an unexplained failure to account, combined with delay, is often enough to obtain relief.

Where matters are urgent, for example where property is being sold or funds moved, it is possible to seek interim relief such as an order restraining a transaction or the appointment of a curator or successor to hold the estate in the meantime.

Fights over what belongs to the estate

A large category of dispute is not about the will at all. It is about whether an asset ever became part of the estate.

The recurring situations: a bank account converted to joint ownership shortly before death, so it passes to the survivor rather than under the will; a beneficiary designation changed weeks before death; a deed transferring the house, signed during a period of decline; large withdrawals made under a power of attorney with no explanation.

These transactions can be challenged on the same grounds as a will, and where a power of attorney was used, the agent owes fiduciary duties of their own and can be required to account for what they did with the money. An agent is not permitted to make gifts to themselves unless the power expressly authorises it.

Where a joint account is disputed, Florida law examines whether it was genuinely intended as a survivorship account or was created for convenience, so that one person could pay bills. The intention at the time of creation governs, and the bank's signature card is evidence of it but not conclusive.

Homestead and elective share disputes

Florida's homestead protection generates litigation because it overrides the will. If the decedent was survived by a spouse or a minor child, a devise of homestead to anyone else may be ineffective, and the property passes under the constitutional formula instead.

Disputes arise over whether the property qualified as homestead, whether a spouse validly waived their rights, and whether an election between a life estate and a one-half interest was made in time.

The elective share produces its own litigation. The elective estate is defined broadly and includes trust assets, joint accounts, payable-on-death accounts, certain retirement benefits and the cash surrender value of life insurance. Disputes are typically about valuation and about whether particular assets fall inside the elective estate.

Waivers signed in prenuptial or postnuptial agreements are frequently examined, and their validity depends on whether the required disclosure was made at the time.

Financial exploitation of an elder

Some cases involve conduct that goes beyond a questionable estate plan. Florida provides a civil cause of action for the exploitation of a vulnerable adult, which includes obtaining or using their funds or property through deception or intimidation, or where a person in a position of trust knowingly deprives them of the use of their assets.

The claim can be brought against the person who took the property, and it can reach transactions that took place during the person's lifetime rather than only what happened at death. Where it applies, remedies can be broader than those available in a straightforward will contest.

These claims sit alongside the estate proceeding and are worth considering wherever there has been a pattern of transfers during a period of dependency.

Tortious interference with an expectancy

Florida recognises a claim for intentional interference with an expected inheritance. It applies where someone wrongfully prevented an inheritance the claimant would otherwise have received, for example by concealing a will, or by preventing the testator from making a change they intended.

It is a claim of last resort. Florida courts generally require that the remedies available in the probate proceeding be exhausted or shown to be inadequate before allowing it. Where the probate court can fix the problem, that is where it must be fixed.

It becomes useful where the wrongdoing is outside the reach of the probate process, or where the wrongdoer is not otherwise before the court.

Disputed creditor claims

Not every dispute is between family members. A creditor may file a claim the estate believes is invalid, inflated or time-barred.

The personal representative can object. Once an objection is served, the creditor must file an independent action within thirty days or the claim is barred. That is a short window and it resolves a significant proportion of claims without further argument.

The reverse also happens: a legitimate creditor, or a family member who advanced funds, finds their claim objected to and must move quickly to preserve it.

The evidence these cases turn on

These cases are built from documents more than from testimony. The material that consistently matters:

• The drafting attorney's file. Intake notes, correspondence, billing records showing who called, who attended, and who paid.
• Medical records. Particularly from the weeks surrounding execution, including medication and any cognitive assessment.
• Financial records. Statements showing the pattern of withdrawals, transfers and changes in ownership.
• The prior estate plan. A consistent plan across twenty years followed by an abrupt reversal is itself significant.
• Care records. Facility notes, home health logs, visitor records showing who was present and who was not.
• Communications. Emails, texts and letters between the testator, family and the beneficiary during the relevant period.
• Witnesses. The attesting witnesses, the notary, treating physicians, neighbours and carers.

Much of this is obtainable only through formal discovery, including subpoenas to the drafting lawyer and medical providers. This is one reason acting within the deadline matters so much: the investigation largely happens after the challenge is filed, not before it.

How the process works

A contested matter usually proceeds like this. A petition or objection is filed within the applicable deadline. The matter becomes adversarial and the rules of civil procedure apply. Discovery follows: document requests, subpoenas to third parties, interrogatories and depositions of the beneficiaries, the drafting attorney and the witnesses.

Interim relief may be sought where assets are at risk. Florida courts generally require mediation before trial, and most cases resolve there. If not, the matter is tried before a judge in the probate division, and appeals go to the district court of appeal.

Timelines vary widely. A matter resolved at mediation may take six to twelve months. One that proceeds to trial commonly takes eighteen months to three years.

Fees, costs and who pays

Florida follows the general rule that each side bears its own fees unless a statute or the document provides otherwise. There are important exceptions in probate and trust matters.

A court may direct that fees be paid from the estate or the trust where services benefited the estate. It may also assess fees against a party's share where they have acted in bad faith, and can order that a fiduciary who breached their duties bear costs personally rather than charging them to the estate they were supposed to protect.

Fee arrangements in these cases vary. Some are handled hourly, some on a contingency basis where the claim is essentially a recovery of assets, and some on a blend. What arrangement is appropriate depends on the nature of the claim and the value at stake, and it should be settled clearly at the start.

Settlement, and why most cases end there

The great majority of estate disputes settle. There are good reasons for that beyond cost.

Litigation consumes the estate itself. Every month of dispute reduces what there is to divide, and both sides are often paying out of the same pool. The outcomes are also uncertain in a way that ordinary contract cases are not, because the central witness cannot be called.

And the parties are usually family. A negotiated resolution can be structured in ways a judgment cannot: property allocated by preference rather than sold, timing adjusted, terms kept confidential.

None of that is a reason to accept an unfair outcome. It is a reason to be clear-eyed about what a case is worth and to make decisions on that basis rather than on the strength of feeling.

What to do next

If you suspect something is wrong with a will, a trust or the way an estate is being handled, the first step is to establish where you stand and what deadline applies. Both can usually be worked out quickly.

Bendel Law represents beneficiaries, heirs and fiduciaries in Florida estate and trust disputes: will and trust contests, undue influence and capacity claims, breach of fiduciary duty, actions to compel and object to accountings, removal proceedings, and disputes over homestead, the elective share and lifetime transfers. Where an estate is still being administered, the related process is set out on the probate page.

This page is general information about Florida estate and trust litigation. It is not legal advice for your situation, deadlines and available remedies depend on the particular facts and on the documents served, and reading this page does not create an attorney-client relationship.