Disputed Probates in Jacksonville

The Roth Law Firm’s litigation experience translates well into representing businesses and individuals in disputed probates.

An undisputed probate may happen in Court, but it is not a lawsuit, nor is it adversarial. It is a process under Court supervision to distribute a decedent’s assets according to their wishes (if there is a Will) or according to the Florida Probate Code if there is not. Most of the time, the process is relatively smooth: the Will is filed in court, the personal representative is appointed, creditors are notified and file claims, estate assets are inventoried, creditors are paid, what is left is distributed to the heirs. There are certainly twists and turns in the details, but most probates proceed without excessive wrinkles.

Contact Us to Arrange a Consultation
904-595-7900

In some cases, however, the probate is disputed. A number of things can happen. They are all situations where we can help:

✔ Someone may challenge the appointment of the personal representative

✔ Someone may object to the work the personal representative is doing and seek to remove them

✔ A creditor’s claim may be disputed

✔ Someone may be the subject of a claim by the estate for money allegedly owed, and the estate’s claim is disputed

✔ Someone may challenge a Will based on fraud, forgery, improper execution, or the existence of a later Will

✔ Someone may challenge a Will based on undue influence or lack of testamentary capacity

We represent those with grounds to challenge the Will, other parts of the probate, or the personal representative’s actions—who are all known as interested parties. We also represent debtors or creditors of the estate when the debt’s existence or amount is disputed.

We represent those clients throughout the State of Florida in both State and Federal courts—County Courts, Circuit Courts, and Federal District Courts. We can take cases from the Keys to the Alabama border, from Jacksonville/Duval County to Miami-Dade, and everywhere in between, including of course our home base on the First Coast.

Two Forms of Proceedings

Whenever a challenge is brought, one of two things may happen. The narrower disputes are heard by motion. They do not materially disturb or interrupt the probate process, no matter how heated the conflict.

The more complicated challenges are heard in what the probate rules call an adversary proceeding. Jargon aside, it is a lawsuit inside the probate. It has every attribute of a lawsuit, from service of process to final judgment. In some situations, the estate may in fact bring suit outside the probate, in civil court. Besides the question of who hears the case, a civil action and an adversary proceeding are virtually indistinguishable.

Anatomy of a Lawsuit or Adversary Proceeding

When a disputed probate leads to a civil lawsuit or an adversary proceeding, you can expect a long process. A lawsuit that proceeds all the way to trial frequently takes a year and a half or more. Looking at it from 30,000 feet, it will be divided into three very broad phases.

The Pleadings Phase

Pleadings refer to the first set of documents the parties file in court. Those documents do not try to prove of anything. They merely put each party on notice of what the other claims. Whether those claims are true and may be proven will be determined over the rest of the lawsuit.

There will always be at least two documents filed as pleadings. The case starts with the plaintiff’s complaint, which alleges that certain things happened, and that the plaintiff should be compensated for them. Then the defendant answers by saying which allegations are true (some will be) and which are denied.

The defendant has the option to do a few other things, two of which are frequent. They may state legal theories in defense of the claims—theories under which, even if the facts alleged could be proven, the defendant is not responsible. And they can bring a counter-lawsuit against the plaintiff. It is easy to imagine a dispute over a contract where each side claims the other is at fault.

The Discovery Phase

Discovery is the part that everyone loves to hate. It is invasive and time consuming. But it is a crucially important process. This is where each side finds out what the other has, who will actually say what on the stand, and so on and so forth.

This is done through several mechanisms. Each side produces the documents the other side demands, each asks the other to answer questions in writing under oath, and takes the other’s deposition. Subpoenas allow for documents and testimony from third-party witnesses to be obtained as well.

The Judgment Phase

Once the documents and testimony uncover the facts, one of two things will happen. If the facts are uncontested, if everybody agrees on what happened, just not on what it means under the law, the Court will be in a position to hand down a judgment without trial.

More often, testimonies will conflict, memories will differ, and the parties will have a trial. A trial’s basic rhythm is known to most people. It follows a familiar pattern, with jury selection (unless it is a bench trial), opening arguments, witnesses called, examined, and cross-examined, documents admitted in evidence, and so on.

What is less obvious is the amount of work leading to trial. If there is a jury, it is the lawyers who prepare jury questionnaires to select it. They will also prepare the instructions that will be read to the jury from the bench at the end of trial. All those are then submitted to the judge for approval. The parties also exchange witness and evidence lists, and argue over their admission ahead of the trial itself.

Depending on the size of the case, this can take a substantial amount of time.

After the Judgment

If the plaintiff obtained a judgment in their favor, they may still need to collect it. The good news is that mechanisms exist to obtain the court’s assistance in doing so. Courts do not like the idea of their judgments being worth no more than the paper on which it is printed.

Conversely, there may also be post-trial challenges to the verdict. Short of an appeal, those can include motions to increase or decrease damages, for a new trial, for attorneys’ fees, to reform the judgment, etc.

Settlement

Just as surely as it can be necessary to go to trial, the vast majority of civil cases settle beforehand.

Many settle in mediation. Mediation is a low-pressure affair, where each side sits in their own room while the mediator goes back and forth between them. The mediator is a neutral third-party with no stake in the lawsuit. They may not force any result on any party. They merely help the parties negotiate. And yet, surprisingly often, that exercise leads to a settlement.

JB has spent a long time developing the skills to help his clients make the most of mediation. Roth Law Firm clients have the benefit of our business experience, legal expertise, and ability to think outside the box and be creative when called upon.

Issues Arising in Disputed Probates

Many disputed probates will arise out of recurring kinds of challenges, all of which we can help with.

Debts of, and Debts Owed to, the Estate

Many a time, cleaning up the last few invoices owed by a decedent is uncontroversial. Similarly, money owed to a decedent is usually undisputed and easy to trace. But sometimes, whether any amount is due or how much, by or to the estate, becomes a bone of contention. Those disputes are often handled in civil court, with the estate appearing as either the plaintiff or the defendant, as the case may be. As often as not, they are cases that revolve around some kind of breach of contract claim. In any event, we will represent with equal zeal an alleged debtor pursued by the estate, or a creditor whose debt the estate disputes or refuses to pay.

Challenges to the Personal Representative

The personal representative, the person we used to call the executor or executrix and now often answers to the initials PR, is the person in charge of administering the probate. It is no small task. They owe fiduciary duties to everyone involved—not just the decedent’s estate, but also presumptive heirs, creditors, and interested parties. The PR may prosecute and defend claims zealously but must always act with utmost care.

Someone with an interest in the probate who finds the PR’s behavior suspect, and alleges some injury as a result, may seek to have him or her removed. The court may consider a number of questions to determine whether abuse or wrongdoing took place. Did the PR faithfully obey all court orders? Did they jealously guard the estate’s assets? Are they free of conflicts of interest in their administration of the estate? Are they mentally competent? Mere disagreement with the PR is not enough to have them removed.

Challenges to the Will, not the Will maker

One can challenge a Will without challenging the decedent’s ability to have written it. Some challenges are particularly technical. For instance, was the Will properly witnessed and notarized? Other cases may involve the discovery of a new Will, dated after the one being probated, but only so long as probate is open. (Once closed, it cannot be reopened for that reason.)

Challenges to the Decedent’s Capacity

Claims of a lack of testamentary capacity or of undue influence are frequent flyers. They are two distinct claims, though related in that they both involve the decedent’s diminished mental state when writing the Will.

Testamentary capacity is legal lingo for one’s ability to understand what they were doing when writing the Will. Could they understand the nature and the value of their property? Did they understand the nature of their relationships with the people around them? Did they understand the practical effect of the Will, of giving this property to that person? A Will written by someone lacking testamentary capacity is invalid. But that is very hard to prove. Eccentric behaviors, bouts of alcoholism or drug use, fading memory, are not enough so long as there are some intervals of lucidity.

Undue influence is different because it involves another person, someone who manipulated the decedent so the Will benefits them. Often it is someone particularly close to the “testator”—the person making the Will. But here too the testator’s state of mind matters. Undue influence means that the wrongdoer’s desire overcame the testator’s and caused them not to leave their assets to those they would have wanted.

Those challenges are not limited to challenging a Will. Gifts made before death, especially shortly before death, may be challenged on the same bases.

We Can Help You

Not all areas of law are created equal or require the exact same set of skills. The Roth Law Firm is positioned to represent you in disputed probates. We offer the benefits of a smaller firm: we know our clients well and are devoted to them. And the Law is the Great Equalizer: each party is ultimately represented by one lawyer making their arguments to one judge or jury.

We have the business sense and legal smarts to guide you through a probate dispute, to settlement when possible, to trial when needed, and arrive at the best possible outcome under the law.

If you find yourself involved in a disputed probate, please call us for a consultation. We will take good care of you.

The Roth Law Firm’s litigation experience translates well into representing businesses and individuals in disputed probates.

An undisputed probate may happen in Court, but it is not a lawsuit, nor is it adversarial. It is a process under Court supervision to distribute a decedent’s assets according to their wishes (if there is a Will) or according to the Florida Probate Code if there is not. Most of the time, the process is relatively smooth: the Will is filed in court, the personal representative is appointed, creditors are notified and file claims, estate assets are inventoried, creditors are paid, what is left is distributed to the heirs. There are certainly twists and turns in the details, but most probates proceed without excessive wrinkles.

Contact Us to Arrange a Consultation
904-595-7900

In some cases, however, the probate is disputed. A number of things can happen. They are all situations where we can help:

✔ Someone may challenge the appointment of the personal representative

✔ Someone may object to the work the personal representative is doing and seek to remove them

✔ A creditor’s claim may be disputed

✔ Someone may be the subject of a claim by the estate for money allegedly owed, and the estate’s claim is disputed

✔ Someone may challenge a Will based on fraud, forgery, improper execution, or the existence of a later Will

✔ Someone may challenge a Will based on undue influence or lack of testamentary capacity

We represent those with grounds to challenge the Will, other parts of the probate, or the personal representative’s actions—who are all known as interested parties. We also represent debtors or creditors of the estate when the debt’s existence or amount is disputed.

We represent those clients throughout the State of Florida in both State and Federal courts—County Courts, Circuit Courts, and Federal District Courts. We can take cases from the Keys to the Alabama border, from Jacksonville/Duval County to Miami-Dade, and everywhere in between, including of course our home base on the First Coast.

Two Forms of Proceedings

Whenever a challenge is brought, one of two things may happen. The narrower disputes are heard by motion. They do not materially disturb or interrupt the probate process, no matter how heated the conflict.

The more complicated challenges are heard in what the probate rules call an adversary proceeding. Jargon aside, it is a lawsuit inside the probate. It has every attribute of a lawsuit, from service of process to final judgment. In some situations, the estate may in fact bring suit outside the probate, in civil court. Besides the question of who hears the case, a civil action and an adversary proceeding are virtually indistinguishable.

Anatomy of a Lawsuit or Adversary Proceeding

When a disputed probate leads to a civil lawsuit or an adversary proceeding, you can expect a long process. A lawsuit that proceeds all the way to trial frequently takes a year and a half or more. Looking at it from 30,000 feet, it will be divided into three very broad phases.

The Pleadings Phase

Pleadings refer to the first set of documents the parties file in court. Those documents do not try to prove anything. They merely put each party on notice of what the other claims. Whether those claims are true and may be proven will be determined over the rest of the lawsuit.

There will always be at least two documents filed as pleadings. The case starts with the plaintiff’s complaint, which alleges that certain things happened, and that the plaintiff should be compensated for them. Then the defendant answers by saying which allegations are true (some will be) and which are denied.

The defendant has the option to do a few other things, two of which are frequent. They may state legal theories in defense of the claims—theories under which, even if the facts alleged could be proven, the defendant is not responsible. And they can bring a counter-lawsuit against the plaintiff. It is easy to imagine a dispute over a contract where each side claims the other is at fault.

The Discovery Phase

Discovery is the part that everyone loves to hate. It is invasive and time consuming. But it is a crucially important process. This is where each side finds out what the other has, who will actually say what on the stand, and so on and so forth.

This is done through several mechanisms. Each side produces the documents the other side demands, each asks the other to answer questions in writing under oath, and takes the other’s deposition. Subpoenas allow for documents and testimony from third-party witnesses to be obtained as well.

The Judgment Phase

Once the documents and testimony uncover the facts, one of two things will happen. If the facts are uncontested, if everybody agrees on what happened, just not on what it means under the law, the Court will be in a position to hand down a judgment without trial.

More often, testimonies will conflict, memories will differ, and the parties will have a trial. A trial’s basic rhythm is known to most people. It follows a familiar pattern, with jury selection (unless it is a bench trial), opening arguments, witnesses called, examined, and cross-examined, documents admitted in evidence, and so on.

What is less obvious is the amount of work leading to trial. If there is a jury, it is the lawyers who prepare jury questionnaires to select it. They will also prepare the instructions that will be read to the jury from the bench at the end of trial. All those are then submitted to the judge for approval. The parties also exchange witness and evidence lists, and argue over their admission ahead of the trial itself.

Depending on the size of the case, this can take a substantial amount of time.

After the Judgment

If the plaintiff obtained a judgment in their favor, they may still need to collect it. The good news is that mechanisms exist to obtain the court’s assistance in doing so. Courts do not like the idea of their judgments being worth no more than the paper on which it is printed.

Conversely, there may also be post-trial challenges to the verdict. Short of an appeal, those can include motions to increase or decrease damages, for a new trial, for attorneys’ fees, to reform the judgment, etc.

Settlement

Just as surely as it can be necessary to go to trial, the vast majority of civil cases settle beforehand.

Many settle in mediation. Mediation is a low-pressure affair, where each side sits in their own room while the mediator goes back and forth between them. The mediator is a neutral third-party with no stake in the lawsuit. They may not force any result on any party. They merely help the parties negotiate. And yet, surprisingly often, that exercise leads to a settlement.

JB has spent a long time developing the skills to help his clients make the most of mediation. Roth Law Firm clients have the benefit of our business experience, legal expertise, and ability to think outside the box and be creative when called upon.

Issues Arising in Disputed Probates

Many disputed probates will arise out of recurring kinds of challenges, all of which we can help with.

Debts of, and Debts Owed to, the Estate

Many a time, cleaning up the last few invoices owed by a decedent is uncontroversial. Similarly, money owed to a decedent is usually undisputed and easy to trace. But sometimes, whether any amount is due or how much, by or to the estate, becomes a bone of contention. Those disputes are often handled in civil court, with the estate appearing as either the plaintiff or the defendant, as the case may be. As often as not, they are cases that revolve around some kind of breach of contract claim. In any event, we will represent with equal zeal an alleged debtor pursued by the estate, or a creditor whose debt the estate disputes or refuses to pay.

Challenges to the Personal Representative

The personal representative, the person we used to call the executor or executrix and now often answers to the initials PR, is the person in charge of administering the probate. It is no small task. They owe fiduciary duties to everyone involved—not just the decedent’s estate, but also presumptive heirs, creditors, and interested parties. The PR may prosecute and defend claims zealously but must always act with utmost care.

Someone with an interest in the probate who finds the PR’s behavior suspect, and alleges some injury as a result, may seek to have him or her removed. The court may consider a number of questions to determine whether abuse or wrongdoing took place. Did the PR faithfully obey all court orders? Did they jealously guard the estate’s assets? Are they free of conflicts of interest in their administration of the estate? Are they mentally competent? Mere disagreement with the PR is not enough to have them removed.

Challenges to the Will, not the Will maker

One can challenge a Will without challenging the decedent’s ability to have written it. Some challenges are particularly technical. For instance, was the Will properly witnessed and notarized? Other cases may involve the discovery of a new Will, dated after the one being probated, but only so long as probate is open. (Once closed, it cannot be reopened for that reason.)

Challenges to the Decedent’s Capacity

Claims of a lack of testamentary capacity or of undue influence are frequent flyers. They are two distinct claims, though related in that they both involve the decedent’s diminished mental state when writing the Will.

Testamentary capacity is legal lingo for one’s ability to understand what they were doing when writing the Will. Could they understand the nature and the value of their property? Did they understand the nature of their relationships with the people around them? Did they understand the practical effect of the Will, of giving this property to that person? A Will written by someone lacking testamentary capacity is invalid. But that is very hard to prove. Eccentric behaviors, bouts of alcoholism or drug use, fading memory, are not enough so long as there are some intervals of lucidity.

Undue influence is different because it involves another person, someone who manipulated the decedent so the Will benefits them. Often it is someone particularly close to the “testator”—the person making the Will. But here too the testator’s state of mind matters. Undue influence means that the wrongdoer’s desire overcame the testator’s and caused them not to leave their assets to those they would have wanted.

Those challenges are not limited to challenging a Will. Gifts made before death, especially shortly before death, may be challenged on the same bases.

We Can Help You

Not all areas of law are created equal or require the exact same set of skills. The Roth Law Firm is positioned to represent you in disputed probates. We offer the benefits of a smaller firm: we know our clients well and are devoted to them. And the Law is the Great Equalizer: each party is ultimately represented by one lawyer making their arguments to one judge or jury.

We have the business sense and legal smarts to guide you through a probate dispute, to settlement when possible, to trial when needed, and arrive at the best possible outcome under the law.

If you find yourself involved in a disputed probate, please call us for a consultation. We will take good care of you.


Contact Us to Arrange a Consultation

904-595-7900


Contact Us to Arrange a Consultation

904-595-7900