Florida – October 29, 2020
In Florida, the statutory and procedural guidelines of the state must be followed to complete probate of a will. Estate planning can reduce complications that may drag out the process and can be effectively handled with the help of Florida legal counsel. A Florida attorney can initiate probate by filing the original will, a petition to the court, a copy of the death certificate and other relevant documents with the Palm Beach County Circuit Court to begin the process and authenticate the will. Granting probate is the first step in the administration of a person’s will, so a deceased’s wishes and division of assets can be accomplished. Palm Beach attorneys can be resourceful in probate actions.
Major hurdles for efficient probate administration of a will include the incidence of lost will documents, or contested wills for lack of due execution, forgery, lack of testamentary capacity, or undue influence. Under Florida law, will challenges have legal limitations to assure that a person’s estate plan will be protected. Talk to a probate attorney about common objections to wills that can be successful including:
- Lost will, or outdated version. Original wills may be misplaced, or codicils to a will may not be available, leaving the court to decide what is valid, but it must be established that the will was not revoked, execution was proved, and the provisions of the will are clearly and distinctly proved by credible witnesses, or a copy of the will proved to be true.
- Lack of due execution. This is an when a will was written and signed without adherence to Florida’s specific requirements for signing a valid will, to include witnesses and attestation clauses. There are occasions where nuncupative, or holographic wills are made, but they are subject to scrutiny in accordance with Florida probate law.
- When an individual claims that the signature on the will is not the decedent’s, and consideration is made when attorneys were not involved in the drafting, or signing of the will, or unethical individuals are involved.
- Lack of testamentary capacity. This claim is based on the fact that the testator did not know what they were doing when they signed their will, perhaps in cases of Alzheimer’s, or other temporary altered states due to medical treatment, or sickness.
- Due execution. The initial burden is on the proponent of the will to show that it was duly executed in accordance with Florida probate laws. The court also has the obligation to determine that the will was duly executed. In cases where the will’s execution was supervised by an attorney, there is a presumption of compliance and most wills contain what is called an attestation clause which describes what happened, who was present and what was said in a manner intended to comply with the statute. The inclusion of such a clause constitutes prima facie evidence of due execution.
- Undue influence. When it is proposed that the testator signed the will under influence, or pressure from another party and that the will was not the true intention of the person signing it, but a product of their inability to resist the influence.
Seek legal counsel.
After someone does and their estate needs to be administered according to their wishes, probate actions can seem overwhelming without the assistance of an experienced probate attorney in Palm Beach Florida.
Moran & Associates, Attorneys at Law
2875 South Ocean Boulevard, Suite 200
Palm Beach, FL 33480