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Objecting to Probate

Objecting to Probate of a Will

How do you probate a Florida will and can you do it alone? Under Florida law, the procedure for administering a will begins with the filing of a petition for administration. The petition must contain a statement of the interest of the petitioner, the petitioner’s name and address, and the name and office address of the petitioner’s attorney. Fla. Prob. R. 5.200(a). Where there is a will, a statement that the original of the decedent’s last will is in the possession of the court, or accompanies the petition, or that an authenticated copy of a will deposited with or probated in another jurisdiction, shall also be included in the petition for administration. Fla. Prob. R. 5.200(j). A person receiving notice of a petition for administration may object to such petition prior to the will being admitted to probate.

Notice of a petition for administration is governed by Fla. Prob. R. 5.201. After the petition for administration is filed and the will admitted to probate, the personal representative shall promptly serve a copy of the notice of administration upon the persons set forth in Fla. Prob. R. 5.240(a).

If a person is served with a copy of the notice of administration, Fla. Stat. § 733.212 applies. At subsection (2)(c) it provides:

Any interested person on whom a copy of the notice of administration is served must object to the validity of the will, the venue, or the jurisdiction of the court by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred. The 3-month time period may only be extended for estoppel based upon a misstatement by the personal representative regarding the time period within which an objection must be filed. The time period may not be extended for any other reason, including affirmative representation, failure to disclose information, or misconduct by the personal representative or any other person. Unless sooner barred by this subsection, all objections to the validity of a will, venue, or the jurisdiction of the court must be filed no later than the earlier of the entry of an order of final discharge of the personal representative or 1 year after service of the notice of administration.

What happens if a person who inherited under a prior will is not given notice of a petition for administration of a subsequent will that is admitted to probate? In that event, they may petition for revocation of probate pursuant to Fla. Stat. 733.109(1), which provides:

A proceeding to revoke the probate of a will shall be brought in the court having jurisdiction over the administration. Any interested person, including a beneficiary under a prior will, unless barred under s. 733.212 or s. 733.2123, may commence the proceeding before final discharge of the personal representative.

It is important for lineal descendants of decedents, as well as close friends and family, to pay attention to any documents sent to them regarding the decedent’s estate, and to file appropriate pleadings so as to protect their ability to object to a last will they do not think is valid. See Feather v. Sanko, 390 So. 2d 746 (Fla. 5th DCA 1980) (reversing trial court judgment challenging admission of will to probate based upon daughter’s pleading being sufficient to require proponent of will to give her notice of hearing to admit the will to probate and trial court error in failing to grant daughter’s motion for extension of time to file pleadings). As such, it is wise to consult with experienced probate counsel after the death of a loved one if there are any questions or concerns about their last will.

Florida Will Contests:Do Prior Beneficiaries Have the Right to Sue to Revoke Probate? >

Florida Estates and Timely Creditor Claims >

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