Dealing with the death of a loved one is an incredibly difficult experience. When that loved one’s estate becomes a source of contention and fighting among family members, the stress of the situation is only made worse when the parties take their arguments into court.
Not all estates end up in litigation, but those that do often share similar characteristics. If you are worried that your estate or the estate of a loved one may be a source of conflict in your family, learn more about the common reasons why estate litigation is necessary, and how you can protect your family.
Estates Without Wills
When a person dies intestate, meaning without leaving a will, the laws of Florida dictate which family members will receive the property or other assets in the deceased’s estate. For example, if a person who is married with no children dies, his or her spouse will receive the entire estate. If a person who has children but no spouse dies, the children will inherit the estate.
While these rules seem simple enough, many people who die intestate have a family situation which is significantly more complicated. When a person remarries, has surviving parents, or has step-children or step-grandchildren, the rules regarding who gets what can be confusing. Additionally, if a person dies intestate with few surviving relatives, it may be necessary to track down distant relations who may be entitled to different shares of the estate.
Often, the estate of a person who dies without a will ends up in court because of the complicated intestate inheritance rules. In addition to determining who gets which assets, an estate litigation case may be necessary in order to accurately and fairly divide the property between family members. By working with an experienced Florida estate attorney, you or your loved one can avoid this type of court proceeding by creating a will that distributes your estate as you see fit.
Even when a person dies with a will, some family members or other beneficiaries may still file a lawsuit challenging it. Though lawsuits can be filed for many reasons, most people who challenge the validity of a will allege one or more of the following issues:
Lack of Capacity
A person who creates a will, called a testator, must have the mental ability to understand what he or she is signing—if the testator is incompetent, that person lacks the capacity to create a will. For example, lack of capacity is often alleged in cases where the testator was very old, or was suffering from a disease like Alzheimer’s or dementia.
In general, the testator must be able to understand what property and assets he or she owns, who will be receiving the property after the testator’s death, and the relationship between the testator and the beneficiary. If the testator cannot understand these things because of age, illness, or other incapacity, then testator’s relatives may challenge the will and a court may find the will to be invalid.
Sometimes, a trusted friend or adviser may take advantage of a vulnerable testator and influence that person to make decisions which are not in the testator’s best interest. When someone else convinces the testator to substitute his or her desires in place of the testator’s own best interests, that person may be exerting undue influence on the testator.
In cases where undue influence is alleged, a probate court will get involved and determine if the testator was inappropriately pressured or coerced into creating or changing a will. The court will look at the circumstances surrounding the will, such as where and when it was signed, as well as whether or not the testator had the opportunity to consult with anyone else about the will. If it can be proved that there was undue influence, the will may be invalid.
Testators are especially vulnerable to financial abuse if their finances are managed by a third party. When someone takes money from the estate, even while the testator is still alive, that person can be ordered to repay the ill-gotten money. For example, if a child or relative manages an elderly testator’s finances, and uses the testator’s money to pay their own bills or expenses, that person has unfairly (and illegally) taken money out of the estate. Other people who would benefit from the will have the right to ask a probate court to order that person to return the money to the estate.
In addition, the assets in an estate are managed by a trustee. Sometimes, this trustee is an independent third party, like a lawyer, but often the trustee is a family member or friend. If the trustee is spending money out of the estate or mismanaging resources, litigation may be necessary to protect the people who should inherit from the will.
Protect Yourself And Your Family
The issues listed above are not the only reasons why a person’s estate may end up in court. Unfortunately, litigation can be filed for all types of reasons, from serious concerns about fraud to petty squabbles over knick-knacks.
While no one can fully protect their estate from every possible legal challenge, working with an experienced Florida estate planning lawyer can help ensure that your assets are distributed as you want them. At the Law Office of Jonathan M. Galler, P.A., we can create a will that protects your property. We are dedicated to protecting your legacy, and will work to help you provide for your family after you are gone.
To schedule an appointment, call 561.881.6912.