Following the death of a loved one, emotions can run high and suspicions raised, especially if several heirs are involved. Disputes about the legitimacy of a will or trust, theft of property, as well as the proper manner in which they should be implemented, can easily emerge. Unfortunately, resolving these issues often requires legal intervention.

In order to guarantee that your rights and the wishes of your loved one are fully upheld in these types of situations, it is important to have the representation of a skilled legal professional. At Battaglia, Ross, Dicus & McQuaid P.A., our attorneys understand how much these issues matter for you and your family, and we have the experience you need in the litigation of cases involving probate, wills, and trusts. While litigation is never the first option, these circumstances do arise and having a lawyer that you can trust is important.

Types of Disputes

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Will Contests

Our probate attorneys frequently handle disputes relating to the validity of a person’s Last Will & Testament. These lawsuits involve challenging the validity of the Will and can be filed at two points during the probate process.  These lawsuits can be filed before and after the Will is admitted to probate. Will contests can be filed by a limited number of people, including disinherited heirs at law, beneficiaries, and fiduciaries named in prior Wills.

Our probate attorneys represent clients contesting Wills for:

• lack of signing formalities (the Will was not signed properly)
• lack of testamentary capacity (the person who made the Will lacked the proper mental capacity at the time the Will was signed)
• undue influence
• fraud

In many cases, the presumption of undue influence can be raised by showing that the person benefiting under the new Will occupied a confidential relationship and substituted his or her wishes for the wishes of the person who made the Will and actively procured the new Will. Occasionally, Will contests also include allegations of forgery and fraud.

Trust Disputes

Our trust attorneys frequently handle disputes relating to the validity, interpretation, and management of a person’s Trust. Similar to Will Contests, these lawsuits often involve:

• the capacity of the settlor (whether the person who made the Trust had the legal capacity to create it)
• undue influence (was the settlor coerced into creating the Trust?)
• fraud
• trustee mismanagement (did the trustee act in a manner to benefit themselves rather than the settlor and beneficiaries, use trust assets for personal reasons or disregard instructions for distributing property?)
• related fiduciary litigation (discussed in more detail, below)

Fiduciary Litigation

Our trust attorneys are well-versed in identifying breaches of fiduciary duty by trustees and other fiduciaries, including the duties of good faith and loyalty and the avoidance of conflicts of interest. We are able to identify fiduciary mistakes and mismanagement within fiduciary accountings, which frequently are designed to confuse beneficiaries who are not accustomed to these types of cumbersome financial reports.

Our trust litigation attorneys comb through these fiduciary financial reports and tax returns and explain them in a way our clients can understand. If there has been a breach of fiduciary duty, our trust attorneys aggressively pursue damages against the fiduciary, including in some cases, removing the fiduciary through a court proceeding.

Conservatorship and Guardianship Disputes

Our probate and elder law attorneys also handle disputes that arise when a loved one is ill and unable to make informed decisions regarding his or her health care and finances, whether based on a physical or mental infirmity or both. If you have a friend or relative who is suffering from dementia and/or Alzheimer’s, our probate attorneys strongly recommend that an estate plan be implemented as soon as possible while the person still has the capacity to do so. Unfortunately, sometimes the person no longer has the capacity to do estate planning, and disputes arise in the guardianship context. Our probate attorneys provide zealous representation to protect those who cannot protect themselves from unscrupulous “caregivers” and family members who seek to take advantage.

Spousal Rights

As a surviving spouse, you are entitled to certain benefits under Florida law. These entitlements may include the elective share or rights to inherit as a pretermitted spouse, as well as the right to exempt property, including the primary residence (homestead) and automobiles, in addition to the $18,000.00 family allowance. Our probate attorneys can assist you to maximize your entitlements as a surviving spouse under Florida law.

Creditor Claims

If a creditor is owed money by a deceased person, a creditor claim can be filed in the probate court. This often arises when there are unpaid medical bills and outstanding credit card bills to be paid. It’s important that the family members of the deceased person do not voluntarily pay these bills, because creditors must meet certain requirements in order to be entitled to payment within the probate administration process.

Even if a creditor already has filed a claim, any interested person has the right to object to the claim, which places the burden on the creditor to prove up its claim. Our probate attorneys can help you navigate the creditor claims process and ensure that your rights and your loved one’s rights are protected during the creditor claims process of probate administration.

Determination of Beneficiaries

When property passes by intestate succession (i.e. when there is no Will) or when the Will is unclear regarding the shares and amounts to be distributed to beneficiaries, our probate attorneys can take action by petitioning the probate court for an order determining the identity of the proper beneficiaries.

In similar scenarios, when the terms of a Will or Trust are ambiguous, our probate attorneys can file a Petition to Construe the Will or the Trust so that the Personal Representative or Trustee knows definitively how to administer the estate or trust so that they are protected from future potential beneficiary disputes.

Financial or Physical Elder Abuse

It is extremely unfortunate but sometimes the trust we place in the hands of caregivers and nursing homes designed to care for our loved ones is betrayed. The same goes for those responsible for assisting the elderly or incapacitated loved ones with financial and legal decisions. Preying upon the elderly has become a growing problem. If you suspect abuse of any type of power involving your loved one, you have a right to speak up on his or her behalf and to seek justice. Our probate attorneys and elder law attorneys can apprise you or your options when you suspect that a loved one is being taken advantage of by a caregiver or health care facility.