Probate litigation is a court process that identifies and gathers assets of a deceased individual, pays the deceased debts and distributes the remaining property to the beneficiaries. Once the assets are gathered, the rebate proceedings are paid first before paying the deceased debts and lastly the remaining assets are distributed to the beneficiaries.


Probate LitigationThe process of probate administration begins when a person dies without leaving a will. When a person dies, another person or close relative with interest in the property can apply to become the administrator. The surrogate court appoints the administrator (fiduciary) to act on behalf of the decedent. To become an administrator, the individual must file a petition with the surrogate court. The petition should include the description of the property and its value. The petition should also contain the names and full addresses of all beneficiaries. The beneficiaries include all next kin relatives who will inherit the property. If a beneficiary is dead, his or her children must be identified to inherit the share of their parent.

Once the parties to the probate proceedings are identified, they must be served with a notice of administration. The proceeding requires all parties that must receive the notice of administration to sign consent for the petitioner to be appointment as the administrator or receive a court’s citation. The citation should inform the recipient that the petitioner has applied to be appointed as the administrator and also include the venue, date and time for the petition hearing. If the beneficiary is a minor or mentally challenged adult, the court shall appoint an attorney (guardian ad litem) to represent the interest of the beneficiary.


An individual can contest the probate litigation under the following terms:

  • Mistake in Execution
  • Undue Influence
  • Lack of testamentary capacity

In addition to the above three grounds, the litigation process may also include:

  • Determination of heirs
  • Will construction
  • Elective share litigation
  • Removal of fiduciary duty
  • Breach of fiduciary duty
  • Surcharge action
  • Accounting


In Florida, the contest of the will starts when the testator dies. Nevertheless, in most occasions, the heirs, beneficiaries and other interested parties do not understand the contents of the will until it is revealed in the probate administration.

Under the Florida laws, once a party receives the notice of administration, the party has 90 days to make a decision. If a formal notice of administration has been issued before the will was admitted into probate, the party has only 20 days to file probate litigation contest. To contest the will, the individual must file proper supporting documents, file a formal contesting suit and hire an attorney.


1. Execution Formalities

Under this ground, the court is mandated with determining whether the execution was properly executed. In the probate litigation determination of whether the testamentary instrument is valid or not, the statute exclusively controls the requirements for qualification and execution.

The testator must be of sound mind to make a valid will in Florida and be at least 18 years old. If the testator is qualified, the document must be executed according to the formalities set by the statute. The formalities include

  • The testator must sign the will or another person must have signed under the directives of the testator
  • Must be in writing
  • The signing must be in the presence of at least two witnesses
  • The witness signing must be in the presence of the testator and the other witness

It is important to note that probate litigation courts in Florida have previously held wills to be invalid when witnesses testify that they did not sign at the presence of each other. Most wills contain an oath attachment that states that the witnesses and testator were all available during the signing process.

2. Lack of Testamentary Capacity

The first requirement is that the testator must be of sound mind for a will to be valid. The question of sound mind was addressed by the Supreme Court of Florida in 1953 to mean the testator must be clearly able to understand the nature of his property, relationship of beneficiaries and the practical effect of the will. It is also important to note that previously, the courts of Florida have ruled that physical failings, old age, shifting judgment or memory failings in themselves do not establish lack of testamentary capacity.

3. Undue Influence

The ground to contest under undue influence occurs when the testator decision was not voluntary. An individual can contest if the testator acted under pressure, persuasion and outside influences. The contester must proof that the influencer is a substantial beneficiary, active in procuring the will and or had a confidential relationship with the deceased.