In an ideal scenario, the process of probating a loved one’s estate will go smoothly, and everyone involved in the process will be on the same page regarding how to wind up your loved one’s final affairs. Your loved one’s estate plan will provide clear guidance, and there will be no questions regarding its legal enforceability.

But, things do not always go according to plan. Ambiguities can add layers of complexity, and disagreements between family members (and others) can slow the process to a crawl. They can also put the outcome of the process in question, and what seemed like a straightforward process can suddenly become a confusing and stressful morass of legal issues.

Overcoming Challenges during the Probate Process

The good news is that these issues can be overcome. With the help of an experienced probate attorney, you can make informed decisions and move forward with your loved one’s (and your own) best interests in mind. Here are five examples of common issues during probate in Florida and some potential solutions for each:

1. Your Loved One’s Estate Plan Is Ambiguous

One of the most common issues that arise during probate is that the decedent’s estate plan is ambiguous. Either the terms of the decedent’s will are not clear, or different documents in his or her estate plan call for incongruous distributions. For example, maybe the will calls for all assets to be divided among the decedent’s two children who were alive at the time the will was prepared, but then a subsequent trust leaves specific assets to those two children plus a third child who was born at a later time.

These types of estate planning mistakes are fairly common. And in these types of scenarios, it can be important to focus on the decedent’s intent. In the example above, even though the decedent did not formally revoke his or her will, it would seem that the trust was intended to supersede it. Of course, there could be countervailing considerations as well. For example, maybe the trust omits a portion of the decedent’s estate. If this is the case, should the omitted assets be split between the two first-born children? The answer might not be clear. And if the children cannot all agree, it may be necessary to go to court to obtain a resolution.

2. Your Loved One’s Estate Plan Is Incomplete

Another common issue during probate is the incomplete estate plan. For example, if the decedent prepared his or her estate plan years before his or her death, the plan may not address many of the assets that the decedent acquired in his or her later years.

In this situation, the first question that needs to be asked is whether the decedent’s estate plan is truly incomplete. Is the estate plan truly devoid of language that addresses these “after-acquired” assets, or is there general language or a catch-all provision that brings these assets within the terms of a will or trust?

If not, then these assets will likely need to be distributed according to Florida’s intestate succession laws. These are the laws that apply when a person dies without an estate plan. These laws generally provide that assets should be distributed to the decedent’s closest relatives. However, there can be some ambiguities here as well.

3. Someone Is Asserting That Your Loved One’s Estate Plan Is Unenforceable

There are a handful of issues that can make a will invalid and unenforceable. Some of the most common examples include failure to follow the necessary formalities, lack of testamentary capacity (or being of “unsound mind”) at the time of execution, undue influence, and fraudulent inducement to include certain provisions.

There are a number of reasons why someone may try to challenge an estate plan’s enforceability. Typically, however, these disputes arise when someone who believes he or she should be entitled to a portion of the decedent’s estate discovers (i) that he or she has been left out of the estate plan, or (ii) that someone else, perhaps a caretaker, has unexpectedly been left a sizeable bequest. In these situations, it will generally be necessary to go to court and ask a judge to issue a ruling regarding the estate plan’s validity.

4. Someone Is Challenging the Adequacy of the Personal Representative’s Performance

During probate, the individual who is responsible for administering the decedent’s final affairs is referred to as his or her personal representative. In Florida, personal representatives have a number of legal duties, and they can face personal liability if they fail to fulfill these duties while administering the decedent’s estate.

When a personal representative fails to fulfill his or her duties, beneficiaries and other interested parties can petition to have the personal representative removed. Grounds for petitioning for the removal of a personal representative include:

  • Having a conflict of interest (serving as personal representative and being a named beneficiary does not automatically establish a conflict of interest)
  • Failing to properly account for estate assets
  • Failing to properly manage estate assets
  • Failing to adhere to the terms of the estate plan
  • Failing to follow a court order

Personal representatives can challenge petitions for their removal; and, if a personal representative agrees that he or she is not qualified to serve in the role, then the personal representative can consent to removal (or resign) as well. However, it will be necessary to have an alternate personal representative appointed, and a personal representative who has been accused of wrongdoing may need to dispute the allegations against them in order to avoid personal liability.

Discuss Your Situation with a Trusted Lawyer at Beller & Bustamante, P.L.

If you have run into an issue during the probate process, or if you are preparing for probate and would like assistance avoiding these types of issues, we encourage you to get in touch. Our attorneys can help ensure that your loved one’s estate is administered appropriately. To schedule a confidential initial consultation at our offices in Jacksonville, please call or contact us online today.