Monroe County, Florida Probate & Trust Litigation

When a friend or loved one passes on, it is always a difficult time. There are countless things to handle – dealing with their estate’s disposition is the last thing most people want to add to that list. This becomes especially true if there is a dispute. It is usually best to involve a professional in these situations, so that questions may be resolved quickly and decisively.

Trust Litigation

With a revocable or ‘living’ trust, an individual can retain control of assets by naming him or herself as trustee (also called the settlor), but the property is all documented and collected so when he or she passes, he or she may simply name a successor trustee or trustees. (A trust is also preferable for many because it helps avoid cumbersome estate taxes.) In many states, a living trust can help avoid probate court, but in Florida a probate proceeding is still usually initiated even if a living or revocable trust is present. This is because the law states that creditors are entitled to a two-year period after a settlor’s death unless probate has begun (if it has, the period is only six months).

Notwithstanding these good intentions, trusts can fail. The structure of a living trust lends itself to hands-off administration, especially if the creator has passed away and the assets are now in the hands of a successor trustee. A successor trustee may have had little opportunity to learn how to administer the trust effectively, or he or she may simply be lazy or greedy. It is also possible to challenge the existence of a trust – that is, to argue that the trust is illegitimate due to undue influence or lack of capacity on the part of the settlor.

Probate Litigation

Probate litigation is a bit more commonplace than trust litigation, though the gap has been closing in recent years. This type of suit must be brought in probate court, so the estate in question must be either in probate or about to be. There are several reasons that one might choose to bring a lawsuit in the realm of probate, including:

  • Contesting a will
  • Creditors’ claims (if within the appropriate time frame)
  • Actions to reclaim property wrongfully in another’s possession (for example, if a caregiver is given or steals an asset that an elderly person made provision for in their will)
  • Beneficiaries’ claims (for example, someone named in the will that was not given his or her due)

This is an area in which a professional may be of extra benefit. Litigation over a loved one’s estate can be highly volatile, and an unbiased opinion may be important. Allegations like theft or undue influence (which is a rebuttable presumption in Florida, meaning that the accused can defend him or herself) can tear a family apart, and the court is not obligated to investigate any charges you may lay on your own. If your attorney brings a matter to the court’s attention, it acquires more legitimacy.

Contact An Estates & Trusts Attorney

If you need the services of an experienced legal professional in your trust or probate litigation, the Silver Law Group can assist. We have years of experience in this field, with a long track record of success. Contact our Islamorada office today to discuss your options; the first consultation is at no charge.

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