How to Revoke Probate in Florida
How to revoke probate in Florida may be the key to getting your inheritance. Regrettably, in some cases of undue influence and probate fraud, it’s your only option. If a probate was “opened“, you will need to take action if you want to preserve your rights. And fight back. Knowing where such a petition fits in with you trying to get your inheritance is key to your success.
Understanding the Probate Process in Florida
In Florida, when you die, there are special rules for what happens to your property. Specific procedures that need to be followed. For example, most beneficiaries don’t know that all creditors and estate (probate) expenses are paid first ! Before a beneficiary sees a dime !
First, your assets should be gathered. This process is also known as “marshalling” your assets.
Non probate assets, so called “will substitutes” like joint accounts, generally go to the survivor. But not always. Knowing when such an asset should come back to probate is often heavily litigated. So much for “avoiding” probate with joint tenancy, right?
Second, all debts of the decedent need to be paid. Mortgage? IRS? Borrowings; last electric bill; cable bill, etc. You get the point. Then expenses of administration need to be paid. Including the probate lawyer !
Court documents need to be filed in the probate court and interested persons need to receive notice. What if the will that is on file is wrong? What if the petition for administration was granted and you think it’s wrong? If someone did this to you without notice, you need to take action.
How to Revoke Probate in Florida
If a will was admitted, and there is already an on-going probate, time is not on your side. You may have to go in and file a Petition to Revoke Probate. You can read about this in Florida Probate Code 733.109.
What is a petition to revoke probate? It is a proceeding. It is a court filed document which essential says “something is going wrong here, and we need to make a change.” When a probate is opened, a personal representative is generally appointed. She runs the estate. An order is issued from the court. Letters of Administration are granted –giving power to the person put in charge of the estate. A petition to revoke probate in Florida seeks to set those aside. How?
First, you better have a good reason. One reason may be if the will that was “admitted” to probate is invalid or void. There are a number of reasons why a will may not be valid in Florida. Insane delusion. Undue influence. Fraud. Also, if someone had dementia when the will was signed, it might be invalid. But, are there prior wills that work and are valid? Or is there NO will?
Another reason may be if the one appointed to run the estate should not be in charge. A September 8, 2021 appeals court opinion talked all about this. Or, if the will which was presented isn’t valid. And the Florida resident actually died without a will. What they call “intestacy.” That means that the heirs or family members inherit in specific percentages.
After you file your petition, you need to consider whether you want to conduct discovery and get some answers. Florida Probate Rule 5.080 specifically authorizes you to conduct discovery. If you don’t need to, set it for trial. And get ready to make your opening statements and call your first witness.