Probate Litigation

Probate Litigation Attorneys in Florida | Resolving Estate and Trust Disputes

Dealing with the loss of a loved one is never easy, and the complexities of the probate process can make it even more challenging. Probate litigation attorney Florida professionals play a crucial role in navigating the intricate probate process, resolving estate and trust disputes, and protecting the rights of spouses and children. Understanding the importance of their expertise is vital to ensure a smooth resolution of estate matters.

Short Summary
  • Probate litigation attorneys in Florida offer legal assistance to resolve estate and trust disputes.

  • Understanding Florida law is essential for protecting the rights of spouses and children in estate matters.

  • Choosing an experienced probate litigation attorney with expertise is important for successful representation.

Navigating the Florida Probate Litigation Process

Probate litigation involves contested issues that arise during the administration of an estate and are presented before the probate court. These disputes can range from the validity of a will to the distribution of estate assets. In Florida, experienced probate litigation attorneys focus on safeguarding the rights of rightful heirs and beneficiaries while ensuring the fiduciary duty of the estate’s personal representative is upheld. With extensive experience in probate courts, these attorneys are equipped to handle disputes involving estate documents and their validity, and can provide valuable assistance in challenging exploitative caretakers, family members, or dishonest personal representatives.

The timing of estate litigation in Florida is crucial, as estate property remains at risk until a beneficiary or other interested party takes action. An experienced estate litigation attorney can assess whether further action is necessary against a personal representative and determine the optimal course of action for each unique situation.

The Role of Probate Litigation Attorneys

Probate litigation attorneys in Florida offer counsel on the part of the court system in estate and probate matters, providing guidance and assistance in resolving estate and trust disputes. These disputes may involve the lack of capacity of the testator or an undue influence in the creation of the instrument, which can impact the validity of estate documents and the distribution of assets.

In order to protect the rights and interests of their clients, probate litigation attorneys employ various strategies to resolve probate litigation matters, such as negotiation and mediation, as well as trial and appeals. Ensuring that the attorney has the necessary experience and expertise in handling such matters is crucial for a successful outcome.

Common Types of Probate Disputes in Florida

While contesting the legitimacy of a will is likely the most prominent form of probate litigation, numerous other matters can initiate estate litigation in Florida, such as disputes involving spouses and children from previous relationships. A will contest is a legal challenge to the validity of a will submitted to probate, often based on claims of undue influence or lack of testamentary capacity.

In cases where a parent or former spouse remarries and subsequently passes away, Florida law typically favors the current spouse over children from a prior relationship. These disputes can be complex and emotionally charged, requiring the expertise of a probate litigation attorney to navigate the intricacies of Florida law and protect the rights of all parties involved.

Understanding Florida Law in Estate and Probate Matters

In Florida, probate is mandated for assets owned solely by the decedent at the time of death or assets owned with one or more co-owners without stipulation for automatic succession. To be considered valid in Florida, a will must meet certain formal requisites, such as being signed by the testator and witnessed by two individuals in the presence of the testator and each other.

Understanding Florida law is essential for resolving probate disputes and protecting the rights of spouses and children. Spouses and children have specific entitlements in estate and probate matters in Florida. For example, if a decedent did not have a will, the surviving spouse is entitled to receive a portion of the estate, while the children receive the remaining assets.

Knowing the rights and protections afforded by Florida law can help avoid potential disputes and ensure a fair distribution of estate assets.

Rights of Spouses and Children

In Florida, the rights of spouses and children in estate and probate matters depend on whether there is a will or not. If there is no will, the surviving spouse receives a portion of the estate, and the children receive the remaining assets. If there is a will, the surviving spouse may still be entitled to inherit some assets and property from their deceased spouse, regardless of what the will states.

To prove undue influence or lack of testamentary capacity in probate litigation cases, family members often need to rely on medical records, observations, and unexplained changes in estate plans. It is crucial to understand the legal requirements for proving these issues to ensure the rights of spouses and children are protected in probate matters.

The Probate Court System in Florida

The probate court system in Florida is composed of circuit courts that possess jurisdiction over a wide range of matters, including mental health, guardianship, estates, and trusts. The probate court is responsible for overseeing the probate process and ensuring that the assets of deceased individuals are distributed in accordance with the law.

When disputing matters in probate court, it is essential to understand the structure and function of the court system, including trial and appeals processes. This knowledge can help ensure a fair and equitable resolution of probate disputes, protecting the rights and interests of all parties involved.

Strategies for Resolving Probate Litigation Matters

Various strategies can be employed to resolve probate litigation matters, including mediation, contesting the will, proper estate planning, appointing an independent fiduciary, and attempting to resolve disputes informally through negotiation and mediation. These approaches can help parties reach a mutually satisfactory resolution, avoiding costly and time-consuming litigation.

Understanding and employing these strategies can be instrumental in resolving probate disputes efficiently and effectively. Probate litigation attorneys are well-versed in these strategies, guiding their clients through the complex probate process and ensuring the best possible outcome for their case.

Negotiation and Mediation

Negotiation and mediation are common strategies used to resolve probate litigation matters. Negotiation involves direct communication between the parties to arrive at an agreement, while mediation necessitates the involvement of a neutral third party to facilitate communication and negotiation between the parties. Mediation is often deemed more advantageous due to its consensual nature, swiftness, versatility, and lower cost for either party.

In cases involving undue influence, negotiation and mediation can be especially effective in resolving disputes by helping parties come to an agreement on the terms of the dispute, without the need for extensive litigation. This approach can save time, money, and emotional stress for all parties involved.

Trial and Appeals

In Florida, the trial and appeals process in probate litigation matters is comparable to other forms of litigation. However, parties with an interest who believe an error has occurred in probate court must ascertain whether a final decision was issued, as it is not possible to appeal from an unfinished order. If a final decision has been issued, the appealing party has 30 days from the date of the original verdict to submit an appeal.

Gathering evidence, such as witness testimony, financial records, and other documents, can be critical in defending against probate disputes and proving or refuting a claim in trial and appeals. A knowledgeable probate litigation attorney can help guide clients through this process, ensuring a fair and just outcome.

Gathering Evidence in Probate Litigation Cases

The collection of evidence in probate litigation cases is of great importance, as it can assist in verifying or refuting the assertions brought forth in the case and provide evidence to back up the contentions of the participants. Evidence in probate litigation cases may be acquired through the utilization of subpoenas, depositions, interrogatories, and requests for production of documents.

Having a meticulously drafted estate plan in place can aid in avoiding potential disputes from occurring in the first instance. An experienced probate litigation attorney can help ensure that the necessary evidence is gathered to support or oppose probate disputes in court.

Proving Undue Influence or Lack of Capacity

Proving undue influence or lack of capacity in probate litigation cases requires a thorough examination of medical records, witness statements, and the circumstances surrounding the execution of estate documents. In cases involving cognitive deterioration due to conditions such as Alzheimer’s disease or dementia, or impairment due to medication, the evidence gathered can be crucial in establishing the testator’s lack of capacity at the time of execution.

Similarly, in cases of undue influence, it is essential to gather evidence that demonstrates the extent of involvement and pressure exerted by a friend, relative, or caretaker on the testator. This evidence can help establish whether the testator was acting of their own volition or under the control of the influencer.

Defending Against Probate Disputes

Defending against probate disputes may involve gathering evidence from witnesses, financial records, and other sources to either affirm or refute a claim. This evidence can be crucial in establishing the facts of the case and providing a strong defense against probate disputes in court.

In addition to gathering evidence, it is essential to work closely with an experienced probate litigation attorney who can help guide clients through the complex legal process and ensure a fair and just outcome. With the right legal representation, defending against probate disputes can be a more manageable and successful endeavor.

Choosing the Right Florida Probate Litigation Attorney

Selecting the right Florida probate litigation attorney is essential for protecting your rights and interests in probate proceedings. When evaluating potential attorneys, it is crucial to consider their experience and expertise in probate litigation, as well as their service and attention to your case.

Additionally, ensuring that the attorney is committed to investing the necessary time and resources in your case can make a significant difference in the outcome of your probate dispute. By choosing the right probate litigation attorney, you can have confidence in their ability to navigate the complexities of Florida probate law and provide the best possible representation for your case.


Navigating the Florida probate process and resolving estate disputes can be a daunting task, but with the help of an experienced probate litigation attorney, you can protect your rights and interests in estate and trust matters. Understanding Florida law, employing effective strategies to resolve disputes, and gathering the necessary evidence are all essential components of a successful probate litigation case. By choosing the right attorney and being proactive in addressing potential disputes, you can ensure the fair distribution of your loved one’s estate and safeguard their legacy for future generations.

Frequently Asked Questions

What are typical attorney fees for probate in Florida?

In Florida, probate attorney fees generally start at $1,500 for estates of $40,000 or less, and increase according to the size of the estate. For estates up to $900,000, a fee of 3% is typically charged.

For estates between $1 million and $3 million, 2.5%.

What is the average cost of probate in Florida?

On average, probate costs in Florida range from $1,500 to 3% of an estate’s value, depending on the size of the estate.

This is a reasonable expense for ensuring your assets are distributed according to your wishes after your death.

Do you need a lawyer for probate in Florida?

It is not a requirement to hire an attorney for probate proceedings in Florida. However, hiring an attorney may be beneficial and provide you with the legal advice and guidance needed to ensure your matter is handled in the correct manner.

How long does an executor have to settle an estate in Florida?

In Florida, an executor is expected to settle the estate within 12 months, although simpler estates may take up to 6 months through formal administration.

Let a Jacksonville Probate Litigation Attorney Help

Do you have more questions about estate planning? Our team at Montague Law can provide you with the answers you want. You can easily contact a Jacksonville probate litigation attorney by calling us at 904-234-5653. Allow us to walk you through each step of this legal process.

Contact Info

Address: 5422 First Coast Highway
Suite #125
Amelia Island, FL 32034

Phone: 904-234-5653