Any number of difficult and painful situations can arise during the probate of a Last Will and Testament (“Will”).
One particularly difficult and emotional situation that can arise is when someone objects to a Will.
Why is this a problem?
Because most objections turn into Will “contests.”
And Will contests tend to be contentious as well as expensive legal proceedings.
In today’s post we will look at what happens if you object to a Will in probate.
The Basis for Objecting to a Will in Probate
First, it is important to understand that you cannot just object to a Will in probate simply because you do not like its terms. You need to have a legal basis for objecting to a Will.
Some valid bases for objecting to a Will (there are others) include:
- Defects in the execution of the Will
- That the Will was the product of duress or undue influence
- Decedent lacked the mental capacity to execute a Will
So, if you are simply unhappy with the Will’s terms, for example because you were hoping the decedent would leave you something more (like more money) or something different (like the house), you will not be able to file an objection. Unless you have a valid legal basis for objecting to the Will, the court will not entertain it.
Another thing to bear in mind is that you cannot object to a Will before the decedent has passed away. Sorry, but if the person you are hoping to inherit from tells you he/she has cut you out of his/her Will, there is nothing you can do about that.
Assuming a valid basis for objecting to the Will does exist, the next question is, who can file an objection?
Who Can File an Objection to a Will in Probate?
In Florida, the procedure for administering a Will starts when a petition for administration is filed with the probate court.
After the petition for administration has been filed and the Will has been admitted to probate, the personal representative must serve a copy of the notice of administration on:
- The surviving spouse
- All beneficiaries
- The trustee of a trust, if there is one, and
- Anyone who may be entitled to exempt property, and/or anyone who may have an interest or claim in decedent’s estate, including heirs or devises under any previous Wills the decedent may have had.
Why is this important to know?
It’s important because anyone who has been served with a notice of administration may object to a Will so long as…
They are an “interested person” within the meaning of the law.
Who is an “Interested Person”?
Under Florida law, only an “interested person” can file an objection to a Will.
This is an issue of standing.
Unless a person has standing, he or she may not file a petition to object to a Will.
But who, you ask, qualifies as an “interested person”?
Under the law, an “interested person” is anyone who “may reasonably be expected to be affected by the outcome of the particular proceeding involved.”
That isn’t the narrowest of definitions, perhaps.
But it is not meant to be.
The statute itself recognizes that the definition is a fluid one. In fact, the statute provides that the meaning of “interested person”:
“… may vary from time to time, and must be determined according to the particular purpose of, and matter involved in, any proceedings.”
Which provides quite a bit of leeway.
To give you a bit more guidance, typical interested persons tend to be:
- The nominated personal representative
- The surviving spouse, if any
- Named beneficiaries in the Will,
- Intestate heirs if there is no Will,
- Decedent’s creditors
But you do not have to fall into one of these categories in order to be able to show that you are an “interested person” for purposes of filing an objection to a Will.
In fact, you do not need to be an heir or beneficiary under the Will to file an objection.
You do need to be able to prove that you can “reasonably” be expected to be affected by the outcome of the proceeding—either directly or indirectly.
How Long Do You Have to File an Objection?
Finally, if you have a legal basis for objecting to the Will and you were served with a notice of administration and you are an “interested person,” you must file your objection within the applicable statute of limitations.
In Florida, you only have three (3) months after you were served with the notice of administration to file your objection.
Miss that 3-month mark, and your claims are forever barred.
Protecting Your Family is Just a Phone Call Away.
Don’t leave planning for your future and that of your loved ones to chance. All it takes is one phone call to the Law Offices of Samantha J. Fitzgerald to ensure that your wishes will be followed, and your loved ones taken care of when you are gone. We expertly guide individuals through the complex probate process, and capably handle all aspects of the creation, administration, and settlement of trusts as well. When you work with the estate planning attorneys at the Law Offices of Samantha J. Fitzgerald, you get more than just an estate plan: you get peace of mind. Call us at 954-580-3690 or email us at: [email protected] today.