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How to Handle a Contested Will


So your loved one died and left a will. That’s a good start, as most people die without any sort of estate planning in place. However, having a will doesn’t necessarily mean everything is fine and dandy.

It’s possible for a will to be contested. A jealous relative or even a complete stranger may try to make a claim on your deceased loved one’s estate. The process is a little complex in Florida, as there are strict filing deadlines. A formal lawsuit must be filed within 90 days of receiving a Notice of Administration.

Many people try to avoid will contests by adding no-contest clauses in their wills. However, Florida does not allow for this. So what can you do to reduce the risk of someone contesting a will? Here are some things to consider.

Authorize Personal Representative or Trustee to Pay the Costs

Florida’s probate code expressly authorizes personal representatives and trustees to litigate on behalf of an estate or trust. Even when a potential heir is omitted from a will or trust, knowledge that assets of the estate or trust could be used for litigation expenses may deter a contest.

Use a Litigation Holdback Fund

Rather than forfeiting their entire interest by filing a lawsuit, the beneficiary’s interest could be escrowed, with access restricted during a contest. When eventually paid to the beneficiary, the interest would then be reduced by the expenses of litigation. A potential reduction in the assets available after the lawsuit may deter someone from filing a lawsuit in the first place.

Address Common Grounds for Contests in Advance

Address possible contests in advance by proving a person’s capacity or a document’s validity. For example, if someone contests that the deceased was not of sound mind, have them undergo an examination by two physicians for capacity issues. Provide the physicians’ signed statements as part of the will or trust.

To counter claims of forgery or manipulation, include a statement showing the person’s intent about the estate plan in the will or trust. There may also be claims of invalid execution. You may want to execute the will or trust while filming a video. Obtain signed statements from the notary and witnesses and have a third-party certify the video’s authenticity.

 Require Mediation for Disputes 

Some states allow the use of alternative dispute resolution procedures such as mediation and arbitration. A will or trust could require a potential contestant to use an alternative to litigation as well as provide guidelines for dispute mediation.

Seek Legal Help

Estate planning is essential, but even if a loved one left a will, it can still be contested. This is likely to occur if there are significant assets at stake.

Fort Lauderdale probate litigation lawyer Edward J. Jennings, P.A. can help you with your probate issue. We have more than 40 years of combined legal experience in Florida courtrooms and are ready to help you resolve your legal matter. To schedule a consultation with our office, fill out the online form or call 954-764-4330.



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