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FLORIDA ESTATE LAWSUITS AND “INTERESTED PERSONS”: WHO CAN ATTACK A FLORIDA WILL?

Uncategorized • Nov 26, 2013

Has a Florida will been submitted to probate which you believe is invalid? Do you want to bring an estate lawsuit, or a probate lawsuit, in a Florida probate court attacking the validity of that Florida will?

A recent Broward County, Florida probate case made its way up to the appellate court, which sits in Palm Beach County, Florida. The appellate court issued an opinion explaining who can take part in a Florida estate proceeding, and, more specifically, who can attack the probate of a Florida will.

In Florida, the person who is in possession of the will of a Florida resident who has just passed away is called the “custodian” of the will. The person who has the original last Will of the now deceased Florida resident, whether it’s a family member, of the Florida resident’s attorney, must file it with the County Clerk for the county where the Florida resident lived.

Once the will is filed, the Florida probate of the estate may begin, although it doesn’t necessarily begin at that point. A Florida probate begins when somebody files court papers to “open up” the probate and begin the estate administration process. This is done by filing what’s referred to as a “petition for administration.” Busy Florida probate lawyers file petitions for administration each week. Dozens of Florida estates are opened up in probate courts in Broward County, Palm Beach County, and Miami-Dade County every week.

Only “interested persons” may be involved in a Florida estate. Put another way, only those people who are “interested persons” have legal standing to take part in a Florida probate– to be able to go to court, and to be active and involved with the administration of the estate of the dead Florida resident. That is because Florida law does not permit just anyone to come in off the street and get involved in a particular probate lawsuit, an estate or trust. It doesn’t matter if you hire the best Florida estate attorney in town or a probate lawyer with a national reputation. There has to be some connection between you, the person who wants to participate in the estate, and the dead Florida resident. The Palm Beach County appellate court in this recent case, described what it means to be an “interested person.” The appellate court wrote in its opinion: “In section 731.201(23), Florida Statutes (2009), “interested person” is defined as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” ”

More specifically, the Palm Beach appellate court went further, in its opinion, speaking more about what it means to be an interested person when you are attacking the will. When one attacks a Florida will in a probate court, and when one tries to have the will declared invalid or void, this is often referred to as attempting to “revoke probate” or “revoking probate.” Revoking probate refers to the legal attack or probate lawsuit on a will which has been admitted to probate, as well as a legal attack on the petition for administration which was filed. The appellate court wrote the following regarding the Broward County probate case that was on appeal: ” “Hence, whether a person is an ‘interested person’ is an element that must be established by the petitioner seeking revocation of probate….” Wehrheim v. Golden Pond Assisted Living Facility, 905 So.2d 1002, 1006 (Fla. 5th DCA 2005). “[A] petitioner may not be an interested person in revocation and removal proceedings if previous and presumptively valid wills have been discovered that, similar to the current will, do not include the petitioner as a beneficiary of the estate.” Id. (citations omitted). Thus “it is the burden of the petitioner seeking to revoke the present will to establish that the previous will, which also excludes the petitioner as a beneficiary, is invalid.” Id. ”

What does this all mean? Loosen up ears, former beneficiaries, family members and those who’ve been cut out of a will. This is particularly important for somebody who has been disinherited. If you want to participate in the Florida estate, and attack the will, or attack the probate, you most likely need to be an “heir” of the dead Florida resident, or you need to be named in prior wills. In other words you need to be a beneficiary under a previous will of the dead Florida resident.

A final word of caution: Florida estates can close quickly, perhaps sooner than you think. A common misconception is that estates stay open for years and years. While this may be true in Florida estates which are mired in litigation, of which have difficult and complex issues, this is not necessarily the case for more simple or straightforward Florida estates. And I’m not talking about those estates with small dollar amounts. You can have a “simple” Florida estate worth millions and millions of dollars and which opens and closes within 9 to 12 months. Talk to your Florida probate lawyer, or your estate litigator, about how best to proceed. And remember: the law does not reward those who sit on their rights or wait to take action. The law rewards those who seek to enforce their rights and get their day in court. Otherwise you may be too late and be forever prevented from participating in the estate or objecting to the Florida will.