Every Florida probate case is unique – the assets are different, the family dynamics are different, and the legal complications that arise are different. But after years of handling probate matters in Broward, Miami-Dade, and Palm Beach counties, we see certain problems come up again and again.
Understanding these common pitfalls before you’re in the middle of a probate can save your family significant time, money, and conflict. Here are the most common problems that arise during Florida probate, and what you can do to avoid them.
1. Family Conflict
Family conflict is the single most common and most costly problem in Florida probate. It can surface in many forms:
- Beneficiaries who feel they were treated unfairly by the will
- Disputes over the distribution of specific personal property, especially sentimental items
- Disagreements about whether to sell the family home or other real estate
- Conflicts over the personal representative’s decisions or compensation
- Allegations that the decedent lacked capacity or was unduly influenced when signing the will
- Ambiguous or outdated will language that leaves room for multiple interpretations
Family conflicts during probate almost always result in delay, additional legal fees, and emotional strain on everyone involved. In serious cases, they lead to formal will contests or surcharge actions that can tie up an estate for years.
The best protection against family conflict is a well-drafted, clearly worded estate plan that leaves no room for ambiguity. Learn more about common disputes between beneficiaries and personal representatives and how they play out in Florida probate court.
2. The Personal Representative Cannot or Will Not Serve
A personal representative (sometimes called an executor) is the person responsible for administering the estate, including gathering assets, notifying creditors, filing required documents with the court, and ultimately distributing the estate to beneficiaries. It’s a significant responsibility, and not everyone is willing or able to take it on.
Common problems with personal representative appointments include:
- The named personal representative predeceased the decedent
- The named personal representative lives out of state and does not fall within one of the family relationship categories Florida law requires for a nonresident to qualify, a bond does not cure this kind of ineligibility
- The named personal representative declines to serve due to the time commitment or family dynamics
- No alternate personal representative was named in the will
- There is no will at all, leaving the court to appoint an administrator
When no personal representative is available or willing to serve, the court must appoint one, a process that adds time and expense to the probate. In some cases, the court appoints a professional fiduciary, which adds ongoing fees to the estate.
The solution is straightforward: name at least one, preferably two, alternate personal representatives in your will, and make sure they are willing to serve before you name them. Learn more about the duties of a Florida personal representative so you can choose someone who is both willing and capable.
3. Missing or Improperly Executed Documents
Florida has strict legal requirements for wills and other estate planning documents. A will that doesn’t meet those requirements, even by a small margin, is invalid. Common document problems that surface during probate include:
- A will that was not properly witnessed by two competent witnesses
- A will signed under duress, undue influence, or when the testator lacked mental capacity
- A will that is entirely in the testator’s handwriting but was never properly witnessed; Florida does not recognize this kind of unwitnessed holographic will. A handwritten document that is properly signed and witnessed by two people, on the other hand, is valid like any other will
- An original will that cannot be located – triggering a legal presumption that the testator revoked it. Learn more about how to revoke a will in Florida.
- Beneficiary designations on financial accounts or life insurance that conflict with or override the will
- An outdated will that no longer reflects the testator’s current family situation or assets
Any of these issues can result in expensive litigation, court intervention, and outcomes that don’t reflect what the decedent actually wanted.
4. Creditor Claims and Debt Issues
Florida probate requires the personal representative to identify and notify known creditors, publish a notice to creditors in a local newspaper, and resolve valid claims before distributing assets to beneficiaries. This process creates several common problems:
- Unknown or unexpected creditor claims that surface after the estate has been partially distributed
- Disputes over whether a creditor’s claim is valid or properly filed
- Estates where debts exceed assets, leaving beneficiaries with nothing, or leaving the personal representative personally liable if distributions were made improperly
- Medical bills and Medicaid recovery claims that weren’t anticipated
Understanding how Florida handles creditor claims is essential for any personal representative. Learn more about the types of fees and debts to expect in a Florida probate action and in what order they must be paid.
5. Delays Caused by Real Estate
Real estate is often the most valuable and most complicated asset in a Florida estate. Common real estate problems during probate include:
- A home that needs significant repairs before it can be sold, creating carrying costs during probate
- Disagreements among beneficiaries about whether to sell or keep the property
- Homestead property, which has special protections and restrictions under Florida law that affect how it can be transferred
- Out-of-state real estate owned by a Florida decedent, which may require ancillary probate in the other state. Learn more about ancillary probate in Florida and how to avoid it.
- Title issues or liens on the property that must be resolved before transfer
Real estate delays can significantly extend the probate timeline and increase costs for everyone involved. Proper estate planning, including transferring real estate into a revocable living trust, can eliminate most of these complications entirely.
6. DIY Probate Mistakes
Florida probate involves strict procedural requirements, court filings, legal deadlines, and creditor notification rules. Attempting to handle it without an attorney, or working with an attorney who doesn’t regularly practice probate law, is one of the most common and costly mistakes families make.
Common DIY probate mistakes include:
- Missing the creditor notice publication deadline
- Distributing estate assets before all creditors have been properly addressed, creating personal liability for the personal representative
- Failing to properly retitle assets, leaving beneficiaries unable to access what they inherited
- Making distributions that conflict with the terms of the will or Florida law
- Missing court filing deadlines that result in additional hearings and fees
The cost of hiring an experienced Florida probate attorney is almost always far less than the cost of correcting DIY mistakes, which can include litigation, surcharge actions, and personal liability for the personal representative. Learn more about what happens if you don’t file probate in Florida.
7. Unfunded or Partially Funded Trusts
Many Florida families set up a revocable living trust to avoid probate, but then fail to properly transfer their assets into the trust before death. A trust only controls the assets that are actually held in it. Assets that remain titled in the decedent’s personal name at death are subject to probate, even if the trust exists.
This is one of the most common and preventable probate problems we see. The solution is to work with your estate planning attorney to properly fund your trust, and to revisit that funding every few years as your assets change.
How to Avoid Probate Problems Before They Start
Most Florida probate problems are preventable with proper estate planning. A well-drafted will, a properly funded revocable living trust, up-to-date beneficiary designations, and a clearly designated personal representative can eliminate most of the issues described above before they ever arise.
At SJF Law Group, we help Florida families build estate plans that work when they need them most, and we guide personal representatives and beneficiaries through the probate process when necessary. Learn more about what makes SJF Law Group different from other Florida probate and estate planning attorneys.
Questions About Florida Probate?
Our team at SJF Law Group works hard to ensure your wishes are honored and your loved ones are cared for. Our probate attorneys expertly guide personal representatives and beneficiaries through every step of the Florida probate process. We serve families throughout Plantation, Fort Lauderdale, Boca Raton, West Palm Beach, and Miami, FL, with both in-person and virtual appointments available.
Call us at (954) 580-3690 or use our online contact form to schedule your free consultation.
