Oct 31, 2018 - Probate by Hoffman & Hoffman
A will is an important legal tool that gives people the opportunity to decide what happens to their assets and how other affairs will be resolved when they die. Florida estate law is generally designed to ensure that a deceased person’s wishes are carried out. That’s why the probate system allows loved ones and others a limited right to challenge a will in court.
The Probate Process
Probate is the legal process courts use to settle a person’s estate and determine how any assets will be distributed. The process involves compiling the deceased person’s assets, resolving outstanding debts and considering any challenges to the will.
The probate process begins when the deceased person’s personal representative files a probate petition in court. The personal representative also has to notify all interested parties of the petition. That includes the deceased person’s family members, known creditors and others identified in the will, including family members and others identified in the will and any known creditors. The court then works with the personal representative to ensure that creditors are paid and the remaining assets are distributed as provided in the will. Unless someone challenges the will’s legal sufficiency.
Ground for Contesting a Will
Florida law allows a person to contest a will on the following grounds:
- Undue Influence: These challenges often come up in cases where someone named in the will is accused of taking advantage of an elderly, sick or otherwise vulnerable person before he or she dies. To prove undue influence, the person challenging the will first has to show that the undue influencer benefitted substantially from the will. Then the challenger has to prove that the undue influencer had a confidential relationship with the person who executed the will and that he or she was active in procuring the will.
- Execution requirements: A will isn’t valid under Florida law unless it is properly executed before the deceased person dies. It must be in writing and (usually) signed by the testator–the person who made the will–and at least two witnesses. Those witnesses also have to sign the will in the presence of each other and the testator. It is important to consult an experienced Miami probate attorney to understand these and other execution obligations.
- Capacity: The testator must have a certain minimal capacity to understand what he or she is doing when the person makes and signs the will in order for it to be valid.
- Fraud: A will isn’t enforceable if it was obtained by forgery or fraud. Handwriting experts are often required to prove false signatures. Fraud is a form of deceit that may be similar to undue influence.
Contact the Miami Probate Attorneys at Hoffman & Hoffman P.A.
Hoffman & Hoffman is a South Florida estate planning law firm whose attorneys help people manage their assets and decide how property will be distributed in the event of their death. Our Miami probate attorneys are pleased to represent clients throughout South Florida, including in Ft. Lauderdale, West Palm Beach and Coconut Grove. Contact us at 305-372-2877 to speak with an attorney.
