Objecting to Probate

Objecting to Probate

One can bring an objection in the probate as to the will’s validity, including grounds of duress or undue influence, fraud, mistake, that the will was signed when the decedent lacked mental capacity, or even that there are defects in the execution of the will itself. Fla. Stat. §732.5165. Of course, a will cannot be contested until after the death of a testator. Fla. Stat. §732.518.

Objections to a will in this instance are evidentiary in nature and conducted by way of a bench trial (a trial with the finder of fact being the judge, not a jury).

What if there is no will? Parties can object in the probate proceedings as to who the presumed heirs are under intestacy, as to a surviving spouse’s elective share, or even as to inheritance to children born out of wedlock. If there is no will, then Florida probate laws tell us who inherits: the heirs. The heirs include the spouse and descendants.

Parties can also object to who the estate’s fiduciary is. In Florida, the personal representative is the executor of the probate. But, as most Florida estate lawyers will tell you, there should be good cause. Generally speaking, a written objection can be filed with the probate based on the qualifications of the person to be the personal representative (and “run” the estate.) If the person who is the probate executor is mentally or physically unable to perform the duties of personal representative, is under the age of 18 years, or is a convicted felon, you may have a very, very good case to remove the Florida personal representative. Florida probate law does not let minors or felons run estates. What if the executor is a non family member and not a Florida resident? This person also would not qualify to serve. Fla. Stat. §733.302, 733.303. Moreover, “a testator has the right to name the person who shall administer his estate provided such person is not disqualified by law.” Pontrello v. Estate of Kepler, 528 So.2d 441, 442 (Fla. 2d DCA 1988) (citations omitted). Generally speaking, a trial court does not have discretion to refuse to appoint who the testator has chosen to serve “unless the person is expressly disqualified under the statute or discretion is granted within the statute.” In re Estate of Miller, 568 So. 2d 487, 489 (Fla. 1st DCA 1990) (citations omitted).

The Florida Second District Court of Appeal did note in Pontrello that a trial court may actually “exercise of this narrow discretion would be appropriate if after the personal representative is named in the will, unforeseen circumstances arise which clearly would have affected the testator’s decision had he been aware of such circumstances, but the testator had no reasonable opportunity prior to his death to change the designation of the personal representative in his will.” Pontrello, 528 So. 2d at 443 (citations omitted).

The important thing, Florida probate attorneys will tell you, is to be careful of the very short deadlines in probate proceedings for filing objections to a will or to the appointment of a personal representative. After all, the law does not award those who sit on their rights. Florida estate law rewards those who speak up.