As summer drew down to an end I, like many others, had the pleasure of attending several end of summer parties. At one of these gatherings, I got to chatting with someone new. Upon learning I am an estate probate attorney in Florida, the conversationalist separated from me by two pieces of key lime pie, lit up. “Really? You mean like wills and stuff? I was just arguing with my husband about whether we need a probate lawyer.”
I love what I do, and I was happy to spend part of that afternoon talking to her about when using a probate lawyer can really make a difference. Later that night, I was ruminating on this conversation and realized how many others likely have the same question: why would you need a probate attorney? I became a lawyer to help people, and I know that using a lawyer can be an investment for some. With that in mind, I created this list of situations with brief explanations and examples of when I would advise my own friends and family to get an estate probate attorney.
10 Situations where a Florida Estate Probate Attorney Matters:
- Contested Wills: This is when a will is being challenged for reasons like improper execution, undue influence, fraud/mistake, or lack of capacity. Contesting a will requires standing, standing means you have a legitimate interest in the will. Challenges to wills must be filed within strict, short deadlines. If a challenge, even a valid challenge, is filed outside of the deadline, the will usually stands despite the problems with it. So do not miss your deadline!
Following Morgan’s father Gunner’s passing, Morgan is notified that Melany, Gunner’s aide, has filed a will with the probate court. The will names Melany as Gunner’s only beneficiary. This is a red flag to Morgan who knows Gunner updated his will when he was first diagnosed with dementia, a full two years before Morgan hired Melany to help Gunner. Morgan knows the will Melany gave the court is either a fake or that Gunner was induced to create a new will. As an heir, by means of being Gunner’s daughter, Morgan has standing to challenge the will, something Morgan is contacting an estate probate attorney to help her with.
- Will Interpretation: Sometimes a will is not clear in its intention.
A provision like ‘I Cole, leave my son Robins, Old Glory. Please display it with pride.’ clearly conveys Cole is leaving his son Robin the flag Cole received upon his retirement from the military. However, Cole’s will also says ‘To my nephew I leave my boat, Salty Minnow.’ At the time of Cole’s death Cole had three nephews, Dalton, Dominic, and Kason. This means “nephew” as written in Cole’s will is unclear and subject to interpretation. Dalton, Dominic, and Kason all want Uncle Cole’s boat, so who gets the Salty Minnow?
- Undue Influence or Fraud: In Florida, a will obtained through duress, mistake, undue influence or fraud is void in part or in full.
Remember Melany from above? Morgan has discovered Melany would lie to keep Morgan and Gunner from talking to each other. Gunner’s neighbor told Morgan that Melany could often be heard in the garden telling Gunner that Melany was the only person who cared for him. This behavior by Melany caused Gunner to become isolated from Morgan, with Melany unduly influencing Gunner to change his will.
- Disputed Asset Distribution: When the beneficiaries cannot agree on how to divide the estate.
In retirement, Cole became an avid fan of the Star Wars Lego sets. Cole’s will bequeaths his entire Star Wars Lego collection to his children Carolanne and Robins. Carolanne and Robins are unable to come to an agreement on how to divide the sets. Robins thinks the sets should be divided 50/50, Carolanne thinks each of them should receive the sets they gifted Cole and the remaining sets should then be divided 50/50 by value, not by number of sets. An estate attorney has become a necessary factor for the siblings in deciding how to divide the collection.
- Personal Representative Disputes: If you are unhappy with the actions or choices of the personal representative. These objections can include things such as the character of the personal representative or that the representative is a major beneficiary.
Cole’s will names his brother Jenson as the personal representative. Carolanne and Robins object to this. Their Uncle Jenson has a history of using Cole, particularly his money. Cole’s children worry Jensen will use the estate for his own benefits rather than follow the will and would like to see someone else in charge of executing Cole’s estate.
- Creditor Disputes: If there are claims against the estate from ineligible or fraudulent creditors.
After Cole’s will was submitted to the court, lawn care company Fairy Yardmothers filed a claim against the estate for $10,000 in unpaid yard services. Fairy Yardmothers claims for the past two years they have been mowing Cole’s yard on a biweekly basis. Carolanne and Robins are confused how Fairy Yardmothers managed to mow their father’s AstroTurf yard on a biweekly basis. Without the help of an estate attorney the estate could be paying Fairy Yardmothers money for a debt the estate did not incur.
- Guardian or Conservatorship Disputes: In Florida, a guardianship is a way to protect or aid someone who is no longer able to fully care for themselves. Guardianships and Conservatorships are usually very good legal tools to protect someone who is unable to protect themselves. But sometimes families disagree on the care path chosen by the guardian or conservator.
Asa is the court appointed guardian of her mother Rowan. Rowan has recently been diagnosed with lung cancer. Asa has made the decision to take a very conservative treatment approach to Rowan’s cancer. Hayden disagrees with her sister’s decision. Hayden would like to see Rowan treated in a hospital that has a more aggressive approach to lung cancer and thus a higher remission rate. Hayden contacts an estate attorney to challenge Asa’s decision and role as their mother Rowan’s guardian.
- Fiduciary Duty Breach: Fiduciary duty means a legal obligation to act in the best interest of the person you are acting on behalf of.
Before Rowan’s husband died, she and Fletcher put their bank accounts into a trust to protect their assets as the age and leave something for their girls. Asa and Hayden have discovered the trustee has been investing their parents' assets in poorly performing mutual funds that the trustee received bonuses for buying shares in. This means the trustee was increasing his own wealth at the detriment of the trust and the beneficiaries. The trustee has breached his fiduciary duty. An estate attorney can help the women recover the value of the trust lost by the trustee and get the trustee removed in favor of someone else so no more harm can be done to the trust.
- Trust Mismanagement: If there are concerns about the administration of a trust. This includes not only breach of fiduciary duty, but also self-dealing (selling themselves an asset of the trust at a below market value rate), conflicts of interest (favoring one beneficiary over the other), poor investments, failing to provide documents when requested, or misusing funds.
- Omitted or Disinherited Heirs: If a will omits a potential heir or disinherits a spouse.
Vic’s will has been submitted by his daughter from his first marriage, Shay. Vic’s will leaves everything he owns to his daughter Shay, expressly leaving nothing to his wife Carmen. Carmen is shocked that Vic has disinherited her, as the two were happily married at the time of his death. Vic was healthy and of sound mind when he died, and their long term family attorney confirms to Carmen that Vic came in by himself to make the changes to the will. Carmen will need an estate probate attorney to challenge the will.
Contact an Experienced Florida Estate Planning Attorney
If you are wondering whether your situation needs an estate probate attorney, please give us a call. At Karen Estry, P.A., we can work with you to identify the risks of moving forward on your own and the benefits an experienced attorney can bring to your circumstances. Call us today at (407) 869-0900 or connect with us online to schedule a consultation and learn how we can assist you.
