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Probate & Trust Litigation FAQ

What is Probate Litigation?

There are many different types of probate litigation that can arise. The personal representative (executor) of the probate estate may sue individuals to turn over assets of the estate. Beneficiaries may sue the personal representative for various reasons. Creditors may sue the probate estate to recover debts due to third parties. Or, there might be a will contest, contesting the validity of the will itself.

The will contest can arise for any one or more of the following reasons:

  1. The testator (will maker) lacked mental capacity (senile, dementia, delusional, unsound mind), at the time the estate planning documents were created.
  2. That the testator was subject to fraud, coercion, or undue influence during its creation and implementation.
  3. That there were ambiguities in the document.
  4. That the will was a forgery.
  5. That the signing of the will did not conform with the legal requirements, such as number of witnesses, proper signature, etc.

What is Trust Litigation?

Here are the most common reasons for trust litigation, but a beneficiary of the trust can pursue a lawsuit against the trustee for any recognized cause of action, and other types of disputes:

  1.  Improper trust formation, or the failure to sign the trust with the property formality - witnesses, a notary, or other formal requirements.
  2. Lack of capacity of the trustmaker.
  3. Undue influence over the trustmaker.
  4. Distribution of assets by the trustee in violation of Florida Statutes.
  5. Judicial interpretation of unclear, confusing, or ambiguous language in the trust document
  6. Trust reformation or modification
  7. Breach of fiduciary duty by the trustee, for:
    1. Failure to make proper or timely distributions
    2. Failure to make proper or timely accountings
    3. Failure to administer the trust in the manner required by the trust document
    4. Failure to follow the prudent investor rule or making improper investments
    5. Self-dealing
    6. Excessive Trustee compensation