Many beneficiaries or family members who are disinherited or cut out of an a Florida estate or estate plan may want to know if they have any recourse? Can you file an objection to the will if you were wrongly cut out of a will inheritance? Do you have any risk if object to provide or file to overturn the will?
No Personal Liability for Objecting to Probate?
- In light of a recent Florida probate appeals case out of the 2nd DCA or District Court of Appeal, many probate litigation law firms are looking at the “risk” of objecting to a probate to overturn the will from a different perspective
- Previously, many experienced probate attorneys from Palm Beach to Tampa cautioned family members, heirs at law, sons and daughters, and other one-time beneficiaries who have been cut out of a will, or estate, from challenging probate
- Many times, estate lawyers suggested that if you are not named in the Florida will, you should not challenge it because if you lose your estate lawsuit, you could pay the other side’s attorneys fees and costs
- Many estate attorneys in Florida pointed to the Florida Probate Code section 733.106 which definitely makes a losing party pay “costs” in a probate proceeding
- BUT, the 2nd DCA case of Anderson v. McDonough is causing some inheritance lawyers to consider advising clients who are cut out to sue, even on a contingency fee basis
- Why? Under the Anderson case and Florida Statute 733.106, there is no personal liability if you lose your overturning the will lawsuit
- The estate can ask the probate court to reduce your inheritance by the winning side’s attorneys fees, but, the thinking goes, if you got cut out of the will and have no inheritance, do you have anything to lose to file to overturn the will? In that limited instance, there is no inheritance to pay the other side’s attorneys fees.
- Well, you could be ordered to pay “costs” if you lose your probate lawsuit
- You can read the Anderson case at this link: http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/April/April%2008,%202016/2D14-2605.pdf
- In the Anderson case, the person who lost the Florida will contest got out of an order making him pay $51,000 in fees when he won his probate appeal
- Having a Florida appeals lawyer who is Board Certified in Appellate Law and who also handles a number of probate appeals may be a good person to have on your legal team
User’s Guide to Probate Litigation in Florida: helpful resources to help you decide if you want to file probate lawsuits or object to the will
- Want to read more about probate litigation in Florida?
- Need guidance on whether or not you should object to the will or file an objection to overturn the will in Florida, Palm Beach or Tampa?
- Here is the link to the Florida Courts webpage on the probate process: http://www.flcourts.org/resources-and-services/family-courts/family-law-self-help-information/probate.stml
- Here is the link to the Florida Probate Code: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Index&Title_Request=XLII#TitleXLII
- Here is the link to the Florida Probate Rules: https://www.floridabar.org/tfb/TFBLegalRes.nsf/
- Here are the rules regulating the Florida Bar if you are interested in hiring a Florida probate litigation lawyer and want to know more about our ethical rules and our rules of conduct: http://www.floridabar.org/divexe/rrtfb.nsf/WContents?OpenView