How do I object to a will in Florida probate: 5 things beneficiaries & family members need to know about contesting the will and revoking probate

A will that is the result of undue influence or lack of mental capacity is void in Florida. Just ask any Palm Beach estate lawyer and they will tell you that undue influence lawsuits are not uncommon. What may be uncommon, however, is guidance for family members and will beneficiaries who are the victims of undue influence. What do you do if you got cut out of the Florida will improperly? What are my rights to contest a will?  Here are 5 things to consider.

1. Read the will. The first thing that you should do is read the will. After all, if you are a beneficiary, but no one told you yet, you ma not have to revoke the will or object to probate.  You may just need to get your inheritance.  But, let’s say that your mother or father passed away in Boca Raton, and you have not received a letter from the estate lawyer.  You may be wondering why not.  Consider reading the will to see what you inherited.  Depending on any number of circumstances, there may or may not be a reading of the will, or a formal, court probate proceeding.   Also, remember that in addition to a Florida will, most estate planning clients also have a revocable trust. Try to get a copy of the trust.  Sometimes called a Florida living trust, the revocable trust typically becomes “irrevocable” or “un-changeable” at the death of the trust creator, called a grantor.  Now, I don’t write wills and trusts.  No one at my West Palm Beach estate law firm does.  That’s because we limit our law practice at Pankauski Hauser to litigation for probate and estate matters.  We help many family members, including many who do not live in Florida, with learning what the will says and understanding what it means.  Ask any Palm Beach trust lawyer and they will also tell you that if you are going to read the will, find out if there is a trust, too.
2. Getting a copy of the Florida will. How do I get a copy of the will if no one is filing it or talking about it?  Under Florida probate law, the person who has possession of the will is called a “custodian.” A change to the Probate Code a few years ago gives family members more rights to read the will.  Although the will custodian is required by law to file the original will with the court or the clerk’s office, within 30 days of death, what do you do if no one files the will?  You can bring a petition in the probate court to compel the custodian to file the will.  And, you may be able to get your probate attorneys fees paid if the custodian is unreasonable.  Remember: in Florida a will is not a private document.  A will is a public document that anyone can read.  Note that this is NOT the same for a Florida trust.
3. File an objection to the probate. If someone has opened a probate in the probate court, they are often said to “offer the will for probate.” If that has occurred, you may, or may not, have received official notice of the estate opening or the probate court proceeding.  If you got notice, you may only have 3 months to contest the will.  You will need to file the proper objection in the proper time frame.  Failure to object to the will within the legal time frame, or in the proper way, means that you can lose your probate case or will contest.  If you want to contest the will the proper way, consider interviewing a probate litigation lawyer.  Most estate lawyers will NOT take your case on a contingency fee. However, if you look hard enough, you may be able to find an experienced, confident probate litigation law firm that will consider taking your will contest case on a contingency fee.
4. Open the probate yourself. What if there is no probate?  What if no one is telling you anything about the property, the money or the estate and you want to read the Florida will? Well, you should take matters into your own hands and consider filing for probate yourself.  Hire a probate lawyer to file a petition for administration and make sure you read the Florida Probate Code and the Probate Rules.  You can actually read these for free online and learn all about the probate process in Florida. A lot prospective clients who don’t live in Florida ask me when they should do this.  I don’t advise that you wait.  After all, if someone has unduly influenced a mother or father to change the will improperly, do you think they are going to tell you about it and safeguard the inheritance that they took from you?  Don’t you think that they are going to spend your Florida inheritance?  I’m not sure that time is on your side.
5. Consider all your legal remedies. Filing to contest the will in a probate is one avenue to go down if you believe that a will has been improperly changed.  But remember that your probate litigation law firm can conduct discovery in the probate.  The probate rules specifically permit discovery. You probably want to know what else someone other than mess with the will.  Many times, family members learn that there were large withdrawals from mom or dad’s bank accounts just before death.  Or beneficiaries were changed to bank accounts, life insurance and annuities.  Ask your legal team and trial attorney about independently obtaining information about assets and property prior to death.  But be careful.  If a trust is involved, you have to make the proper allegations, with the proper facts, to receive an accounting that is before death.  A recent appeals court case in Florida specifically talked about this issue.  Financial discovery is almost always an issue in these estate and trust lawsuits.  Ask any Florida trust attorney about rights of beneficiaries and family members.   Also, an experienced litigation attorney may know that you have other legal remedies to sue someone who acted improperly or who interfered with your inheritance.  Good luck.