FLORIDA – December 30, 2020
Will administration does not occur unless there is a death to a person, at which point a probate attorney will do their best to effectively and expediently administer a will to shield an executor from frustrations surrounding timely payment of bills and costs related to the individual who died. An experienced probate lawyer in Stuart can be instrumental in the smooth transition of estate matters and estate division among beneficiaries.
There may also be times when a beneficiary, or other family member will dispute probate action. Major hurdles for efficient probate administration of a will include lost will documents, or contested wills for lack of due execution, forgery, lack of testamentary capacity, or undue influence. Under Florida law, estate planning attorneys can anticipate will challenges that have legal limitations to assure that a person’s estate plan will be protected. There are 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- Lost will, or outdated version.Original wills may be misplaced, or codicils to a will may not be available, leaving the court to decide what is valid, but it must be established that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. Estate planning attorneys can make certain that documents are signed in accordance with Florida law.
- 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.
Hire a lawyer.
Seek legal counsel to address questions and concerns surrounding the validity of estate planning documents and beneficiary disputes in Florida. Contact an experienced attorney at The Estate, Trust & Elder Law Firm, P.L. in Stuart Florida to assist with questions regarding hurdles to effective probate action.
The Estate, Trust, & Elder Law Firm, P.I.
850 NW Federal
Stuart, FL 34994
by Appointment Only