Florida – October 31, 2020

In Florida, the statutory and procedural guidelines of the state must be followed to complete probate of a will. Estate planning can reduce complications that may drag out the process and can be effectively handled with the help of Florida legal counsel.

Legal action.

A Florida attorney can initiate a Stuart probate action by filing the original will, a petition to the court, a copy of the death certificate and other relevant documents with the Martin County Circuit Court to begin the process and authenticate the will.  Granting probate is the first step in the administration of a person’s will, so a deceased’s wishes and division of assets can be accomplished. A Florida probate attorney is a valuable asset, as determinations are made on how to resolve debts and distribute assets after someone has died. Elder law attorneys are instrumental in drafting and appropriately filing necessary probate and related documents. An estate planning attorney can answer questions regarding the duties of the executor and notices and actions beneficiaries should take.

Hurdles.

Probate does not always go smoothly and can be dragged out over time. Talk to a probate attorney about common objections to wills that can be successful including:

  1.  Lost will, or outdated version. Original wills may be misplaced, or codicils to a will may not be available, leaving the court to decide what is valid, but it must be established that the will was not revoked, execution was proved, and the provisions of the will are clearly and distinctly proved by credible witnesses, or a copy of the will proved to be true.
  2. Lack of due execution. This is an when a will was written and signed without adherence to Florida’s specific requirements for signing a valid will, to include witnesses and attestation clauses.
  3. When an individual claims that the signature on the will is not the decedent’s, and consideration is made when attorneys were not involved in the drafting, or signing of the will, or unethical individuals are involved.
  4. Lack of testamentary capacity. This claim is based on the fact that the testator did not know what they were doing when they signed their will, perhaps in cases of Alzheimer’s, or other temporary altered states due to medical treatment, or sickness.
  5. Due execution. The initial burden is on the proponent of the will to show that it was duly executed in accordance with Florida probate laws. The court also has the obligation to determine that the will was duly executed.
  6. Undue influence. When it is proposed that the testator signed the will under influence, or pressure from another party and that the will was not the true intention of the person signing it, but a product of their inability to resist the influence.

Seek legal counsel.

An experienced estate planning attorney in Stuart Florida can answer questions regarding the steps to complete probate actions. The Estate, Trust & Elder Law Firm lawyers can answer all relevant questions regarding venue, notification, distribution, taxation and other related questions regarding estate property.

The Estate, Trust & Elder Law Firm, P.L.

850 NW Federal Highway #1004
Stuart, FL 34994
Phone: 772-261-8556

 

Sources:

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.518.html

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.5165.html

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.526.html

https://www.flsenate.gov/Laws/Statutes/2018/731.201

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