As an heir or beneficiary to a loved one’s estate, do you have any recourse when someone else starts a probate case on their behalf? Revocation of probate can be a useful tool when a caregiver or another relative tries to put forward an invalid or previously revoked Will. However, initiating revocation of probate action should be done with caution – and always with the help of a skilled probate litigation attorney – to avoid bad blood between family members, and to keep your loved one’s assets from being distributed against their final wishes.
What is Probate?
Probate is the legal process by which the Florida courts review, validate, and administer a person’s Will. A probate case starts in the days following a person’s death, and concludes when the last of their property has been divided among their heirs and beneficiaries. Once a Will is filed with the Florida circuit court, the process of “probating the Will” begins, a personal representative is named, and the family can begin the process of inventorying and distributing the deceased’s assets.
The first step involves determining if the Will is valid. However, sometimes a Will that looks valid on its face may have been previously revoked or entered based on undue influence. In that case, the person’s family members may need to initiate a Will challenge to trigger the revocation of probate.
What Does “Revocation of Probate” Mean?
A revocation of probate is a court order vacating an earlier decision to admit a Will to probate. Basically, it says that contrary to the Court’s earlier decision, the document submitted to the probate court is invalid. Any interested party (including those who would inherit under a different Will, or under Florida intestacy laws) can file a petition to revoke probate in the court that admitted the Will as long as they do so before the final discharge of the estate occurs.
How Do Heirs and Beneficiaries Learn When a Probate Case Has Started?
Probate cases can start within 10 days of the person’s death. Someone close to the deceased, most often the person who will become the personal representative (or executor) of the estate, files the person’s Will in the county where they lived at the time of their death. This could easily happen without the family knowing. However, shortly after receiving the Letters of Administration appointing them executor over the estate, the personal representative must send a formal Notice of Administration to all the deceased’s natural heirs and named beneficiaries. This is often the first notice family members will receive that a probate case has been opened on their loved one’s behalf.
Formal service of this notice of administration starts an important clock for any heirs or beneficiaries considering filing a Will challenge or seeking revocation of probate. Once they receive a Notice of Administration, heirs, beneficiaries, and other interested parties only 3 months to object and ask the Florida Court to invalidate the will and revoke probate. If they wait longer, the personal representative may begin the process of distributing the estate, putting assets beyond the heirs’ reach if the Will is later set aside. Some forms of notice can even shorten this time period to 20 days.
Evidence Needed to Contest a Will
Because revoking probate can negatively affect the rights of would-be beneficiaries and heirs, a person contesting a Will needs to have evidence to prove the probated Will is invalid. This isn’t easy. It can be hard to prove the intentions of a person who is dead. An experienced probate attorney can help you gather evidence to show:
- The testator was not of sound mind when they signed the Will (lack of capacity)
- The estate plan was based on a false belief or “insane delusion”
- The beneficiary coerced the creation of the Will through fraud or undue influence
- The Will was subsequently revoked by writing or action
- The beneficiary’s right to inherit was terminated by operation of law or a later codicil
Often, this will require interviewing family members, caregivers, and friends of the deceased, reviewing documents from their estate planning attorney, and talking to their doctors and care providers about their physical and mental condition when the Will was signed. That is why, if you believe a revocation of probate will be needed to set aside an invalid Will, you should talk to an experienced Florida probate attorney as soon as you receive the Notice of Administration. That will give you and your lawyer time to gather your evidence and prove your case.
What Happens After a Successful Revocation of Probate
Generally, if a revocation of probate is successful, it is as if the Will was never deemed valid in the first place. This can result in one of two outcomes:
- A prior Will can be probated in its place
- The testator’s estate can be distributed according to Florida intestate succession laws
Until the Court decides whether to revoke probate, the personal representative may not make any distributions that would compromise the rights of those contesting the Will in probate court. This can slow down the probate process, and can sometimes cut off the rights of beneficiaries named in the contested Will.
At Harrison Estate Law, P.A., our experienced estate and probate team can help you investigate the validity of a loved one’s Will and decide whether revocation of probate is appropriate. We will help you be sure your family members are provided for after a loved one’s death. Contact us here or call 352-559-9828 to get help today.