By Steven M. Katzman
Florida concentrates wealth, second marriages, blended families, and elderly people living far from their adult children, which is the exact recipe for contested estates. The pattern repeats with unnerving consistency: a caretaker, a new friend, a favored child, or a second spouse becomes the sole point of contact in the last years of a person’s life; a new will or an amended trust appears late, prepared by a lawyer the family has never heard of; assets move into joint accounts and beneficiary designations before death; and the document that finally surfaces looks nothing like the plan the family had been told about for decades.
A word of caution before anything else: probate and trust litigation runs on the shortest deadlines in Florida civil practice, and several of them are measured in months, not years. A formal notice arriving in the mail can start a three-month window to challenge a will. A trustee’s accounting with the right statutory language can start a six-month window to object to conduct disclosed in it. Because these documents look like routine paperwork, families set them aside while they grieve, and the right to challenge expires without anyone realizing a clock was running. If you receive anything captioned “Notice of Administration,” “Formal Notice,” or a trust accounting, treat the date on it as an emergency.
This article explains the disputes that arise in Florida estates and trusts, what has to be proven, and the deadlines that decide most of them before the merits are ever reached.
Contesting a will
Standing belongs to interested persons, defined in Fla. Stat. § 731.201, meaning those who may reasonably be affected by the outcome: beneficiaries under the challenged will, beneficiaries under a prior will, and intestate heirs who would take if no will existed. The grounds are limited and specific:
- Improper execution. Fla. Stat. § 732.502 requires the testator’s signature at the end, in the presence of two attesting witnesses, who sign in the presence of the testator and of each other. Florida does not recognize handwritten wills that lack the required witnesses, no matter how clearly they express intent.
- Lack of testamentary capacity. The testator must understand, in a general way, the nature and extent of their property, the natural objects of their bounty, and the practical effect of the will. The standard is lower than most families expect. A diagnosis of dementia is evidence, not an answer, because capacity is measured at the moment of execution and can fluctuate.
- Undue influence. The document expresses someone else’s intent rather than the testator’s, obtained through overpersuasion that destroyed free agency.
- Fraud, duress, or mistake, including a document procured by misrepresentation about what it was or what it said.
The undue influence presumption, and why it decides cases
Undue influence is the workhorse claim in Florida estate litigation, and the reason is a burden-shifting rule that makes an otherwise difficult proof problem manageable.
Under the framework from In re Estate of Carpenter and codified at Fla. Stat. § 733.107, a contestant who establishes that a substantial beneficiary occupied a confidential relationship with the decedent and was active in procuring the challenged document raises a presumption of undue influence, and the burden of proof shifts to the proponent to establish that the document was not the product of undue influence.
The Carpenter factors used to show active procurement will look familiar to anyone who has watched one of these situations unfold: presence at the execution of the will, presence when the testator expressed a desire to make a will, recommending an attorney, knowledge of the contents before execution, giving instructions to the drafting attorney, securing witnesses, and safekeeping the executed document. No single factor is required, and the list is not exhaustive.
Because the presumption depends on facts about the last years of life, these cases are built from medical records, the drafting attorney’s file and time entries, bank and brokerage records showing changes in account titling and beneficiary designations, phone and visitor logs, and the testimony of the people who were pushed away. The same conduct frequently supports a parallel claim for breach of fiduciary duty where the influencer held a power of attorney.
Trust disputes and trustee liability
Most Florida wealth passes through revocable trusts, which means the real fight is often under the Florida Trust Code, Chapter 736, not the probate code. Trusts can be challenged on the same grounds as wills, and trustees can be sued for how they administer them.
Trustee duties are extensive and specific: loyalty under § 736.0802, impartiality among beneficiaries under § 736.0803, prudent administration under § 736.0804, the prudent investor rule in Part IX, and the duty to inform and account under § 736.0813, which requires annual accountings to qualified beneficiaries. The claims that follow are predictable: self-dealing, paying oneself unreasonable compensation, favoring the beneficiary who is also the trustee, holding a concentrated or unproductive asset for personal reasons, refusing to distribute, and simply going dark. Remedies under § 736.1001 include compelling performance, surcharging the trustee for losses, disgorging profits, voiding transactions, and removal under § 736.0706.
The deadlines here are the trap. Under § 736.1008, a beneficiary’s claim against a trustee for breach is barred six months after receipt of a trust disclosure document that adequately discloses the matter and contains a limitation notice in the statutory form. Absent that, a longer period applies, generally four years, but trustees and their counsel know exactly how to start the six-month clock, and they do. Separately, § 736.0604 bars an action to contest the validity of a revocable trust the later of six months after the trustee sends the statutorily compliant notice or four years after the settlor’s death.
The rights a spouse cannot be written out of
Florida protects surviving spouses in ways that override the document, and these claims come with their own short fuses.
- The elective share. Under Fla. Stat. §§ 732.201 and following, a surviving spouse may elect to take 30 percent of the elective estate, a broad concept that reaches far beyond the probate estate to include revocable trust assets, certain joint accounts, pay-on-death accounts, and other non-probate transfers. The election must be filed by the earlier of six months after service of the notice of administration or two years after the date of death under § 732.2135.
- Homestead. Article X, section 4 of the Florida Constitution and Fla. Stat. § 732.4015 restrict devise of homestead property where there is a surviving spouse or minor child. A devise that violates those restrictions does not fail quietly; it passes the property by operation of law, often to the surprise of everyone named in the will.
- Pretermitted spouse and children. Fla. Stat. §§ 732.301 and 732.302 provide a share to a spouse married after the will was executed, or to a child born or adopted afterward, unless the will provides otherwise or the omission appears intentional.
Deadlines, fees, and the shape of the litigation
Beyond the trust deadlines above, Florida probate imposes several of its own:
- A petition to revoke probate must generally be filed within three months after service of the notice of administration under Fla. Stat. § 733.212(3), and objections to the qualification of the personal representative or to the venue are subject to the same window.
- Creditor claims must be filed within the period set by Fla. Stat. § 733.702, generally three months from first publication of the notice to creditors or 30 days from service on a known creditor, and § 733.710 imposes an absolute two-year bar from the date of death.
- Exempt property and family allowance elections carry their own timing.
Two structural points shape strategy. First, probate proceedings are equitable, so there is generally no jury; the probate judge decides, which puts a premium on documentary proof and on the credibility of the drafting attorney and treating physicians. Second, fees are recoverable in ways rare in civil litigation: Fla. Stat. § 733.106 permits fee awards in probate proceedings, including from the estate or against a party’s share, and § 736.1004 provides for fees in trust proceedings. That reality cuts both ways, and it is a genuine deterrent to litigating a marginal claim.
Hypothetically: a Boca Raton widower with three adult children executes a new will four months before death, leaving everything to the in-home caregiver who drove him to a lawyer she found, sat in the meeting, and kept the signed original. The children receive a notice of administration and spend five months gathering medical records before calling a lawyer. The undue influence facts are strong. The three-month window to revoke probate closed while they were gathering.
Frequently asked questions
My parent had dementia. Does that void the will? Not by itself. Capacity is measured at the moment of execution, and people with dementia can have lucid intervals. Medical records, the drafting attorney’s contemporaneous notes, and the circumstances of the signing carry the analysis, and capacity claims are frequently paired with undue influence for that reason.
How long do I have to contest a Florida will? Often only three months from service of the notice of administration under § 733.212(3). Trust contests run on a different schedule under § 736.0604. These are among the shortest deadlines in Florida law, so the date on any notice you receive should be treated as urgent.
What is a “no contest” clause worth in Florida? Nothing. Fla. Stat. § 732.517 makes provisions penalizing an interested person for contesting a will unenforceable, and § 736.1108 does the same for trusts. Florida is a minority jurisdiction on this point, and it removes a barrier that exists in many other states.
The trustee will not give me an accounting. What can I do? Qualified beneficiaries are entitled to accountings and information under § 736.0813, and a court can compel them, surcharge the trustee for losses, and remove the trustee. A trustee who goes silent is usually silent about something specific.
Can I sue the person who took my inheritance if probate cannot fix it? Sometimes. Florida recognizes tortious interference with an expected inheritance, but generally only where the probate remedy is inadequate, such as where the wrongdoer’s conduct was concealed until the probate window closed. It is a fallback, not a substitute for timely action.
Do these cases go to trial? Most resolve, often at mediation, which is required in most Florida circuits. The ones that try tend to involve either a large disparity between wills or a fiduciary whose conduct is indefensible on the documents.
Talk to a Florida probate and trust litigation attorney
Estate disputes are won on the paper trail from the last years of a life, and lost on notices that arrive in the mail while a family is still grieving. KWBR’s probate litigation practice represents beneficiaries, personal representatives, and trustees in will and trust contests, undue influence and capacity claims, fiduciary surcharge actions, and elective share and homestead disputes, supported by our complex commercial litigation and financial damages teams. If you have received a notice from a Florida estate or suspect a family member’s plan was changed under pressure, contact us promptly for a confidential review.
This article is for general informational purposes and is not legal advice. The example above is a hypothetical illustration, not a real case. Every matter turns on its specific documents and deadlines; consult a qualified Florida attorney about your situation.