When estate matters are resolved through litigation, elders are often asked to testify. They might be a friend or relative of the deceased or the deceased's family; they might be in line to receive benefits from the estate. Oftentimes, a great many assets are at stake. Yet opposing counsel frequently try to cast doubt on elders' ability and capacity to give testimony, seeking to have their accounts dismissed.
Though not everyone is familiar with the term probate, those who are aware of it know that it can be a very difficult and expensive process. Even if a person feels as though he or she has outlined the ways in which assets are to be distributed, there is always the chance that something may go wrong or that the process may be delayed. Without the original owner being present to resolve any disputes or questions, the process can take months or even years to resolve.
Probate can be a very confusing process for many people, especially depending on the assets and financial circumstances of a decedent's estate, as well as any will that the decedent had in place. Some people have never even heard of the word probate, but for those who have recently had to say goodbye to a loved one, or who are preparing to say goodbye, the idea of how the estate will be probated is likely not far from your mind.
Nobody wants to go through a probate dispute, and yet such disagreements seem to occur all too often. Some people feel that squabbling over property and assets is callous in the wake of a lost loved one, but people do not always know when they will pass away, and sometimes wills do not truly reflect the desires and intentions of an individual. If one expects to live longer, he or she may put off changing a will until it is too late.
The simplest way to avoid probate is to have everything that is in your name automatically pass to someone else when you die. This means having all of your affairs in order and maintaining them. The reason people strive to avoid probate is to avoid the time-consuming and costly process of distributing assets that are not automatically passed to a living heir.
In the state of Florida, intestacy laws exist that determine to whom assets are distributed after the deaths of individuals who failed to make legally binding estate plans. For those who were forward-thinking and put estate plans in place, assets are distributed according to their wishes during the probate process. However, in some cases, disputes can result in probate litigation. What are the most common causes of probate litigation?
In Florida, as in all states, the probate process is in place to ensure the assets belonging to a deceased individual are distributed correctly. In some cases, wills and trusts created by the decedent are used to distribute assets, while in cases in which the decedent failed to create estate plans, state law determines the distribution of assets. In cases in which wills or trusts were created, but their contents are questionable, the immediate family members of the decedent have the right to dispute the distribution of assets via litigation if they feel valid reasons are in place to do so.
Many people that are considering their estate plan are curious about probate. After a person passes away, the probate court takes over and sees that the estate is handled properly. Probate court can do things like settle debts and distribute property. However, the probate process is quite lengthy and can take even longer if the estate is complex. To avoid probate, many individuals consider a living trust. While avoiding probate may be an attractive characteristic to a living trust, there are certain things about these types of trusts that may be seen as undesirable.
Here in Florida, undue influence is the leading legal claim for invalidating wills. Prior to 2002, the claim of undue influence left the claimant with the burden of proof, requiring them to show that the will in question was created or modified by undue influence.
If you have been named the executor of a loved one's will, there are several reasons to file the will with the probate court. While it is a pretty common notion that probate is a long and drawn out process, it is a process for a reason, and it helps to protect executors as well as the estate from any unforeseen issues.