Probate Litigation

After decades of hard work and selfless dedication, you deserve the right to leave your assets to your loved ones in any way you see fit. However, oftentimes when folks are at their most vulnerable—either in declining health or advanced age—persons close to them interfere with their wishes by taking advantage of their weakened position to unlawfully influence them to create or change their will or other estate planning documents, to cause them to transfer money and other property during their lives to people they do not intend to benefit, and to do other things against their wishes. In other cases, because a person suffers from mental impairments, such as dementia or Alzheimer’s Disease, he or she may actually lack the legal ability to create a new will or change an existing one. In those cases, the people who should have benefitted but for the creation or change of a will, trust, advance directive or inter vivos transfer (transfer during life) must often resort to litigation in probate court in order to affirm their rights and stake a claim for what rightfully belongs to them.

One of the most common types of probate litigation involves the contesting of a last will and testament and/or trust declaration that provides for the disposition of the decedent’s (i.e., the person who has passed away) assets. Trusts and last will and testaments are written documents that specify how the decedent’s assets are to be distributed, and often specify the fiduciary who will be in charge of the administration of the estate and/or trust, including distribution of assets. A will must be signed by the decedent, as well as two attesting witnesses. During probate litigation involving a will or trust contest, it is important to identify the assets of the decedent, address the payment of taxes and other incidental expenses, and ultimately distribute the assets among those whom the court deems entitled to the assets. Estate planning documents are most often contested on the basis of one or more of the following: undue influence, incapacity, fraud, duress and/or mistake. The court has the discretion to find that either the entire document is invalid or that only portions of the document are invalid.

Many people are familiar with the concept of a will or trust contest, but what many people fail to realize is that they may also challenge lifetime transfers of property when they believe a transfer was made under questionable circumstances, including challenges of undue influence, civil theft, or elderly abuse. The legal issues in litigation over lifetime transfers of property and unlawful changes to documents with testamentary aspects are similar in some respects, but also involve key differences. The law is constantly changing and evolving to address those differences. The attorneys at Chepenik Trushin LLP are at the vanguard of these ever-evolving, highly complex laws and possess extensive knowledge and experience regarding the prosecution and defense of undue influence, civil theft, and abuse of elderly claims for not only unlawful changes to estate planning documents, but also for lifetime transfers.

If you choose to contest an estate planning document or lifetime transfer, you must do so as soon as possible because there is a law of limitation. Consequently, even if you have a valid claim, the probate court will not consider the matter if the strictly enforced time limit has been surpassed. Therefore, whether you live in North Miami, the greater Miami area, Broward County, or elsewhere in Florida, we advise you to contact us today regarding any possible legal counsel you may need.