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Practice Area · 06

Orlando Probate Litigation Attorneys for Will, Trust and Guardianship Disputes

Fla. Stat. §§ 733.107, 733.504, 736.1001, 744.331

Probate litigation covers disputes inside an estate, trust or guardianship case: contesting a will, removing a personal representative, suing a trustee for breach of trust, or opposing a guardianship. Florida sets short, strict deadlines for these claims, such as 3 months to object to a will after service of the notice of administration (Fla. Stat. § 733.212).

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How It Works

How a Probate Dispute Usually Unfolds

The order below fits most estate and trust disputes. Guardianship cases follow their own statutory schedule, described on the contested guardianship page.

  1. 1

    Confirm the deadlines

    We identify every limitation period that may already be running: the 3-month will-objection period (Fla. Stat. § 733.212(3)), creditor-claim deadlines (§§ 733.702, 733.705), and the trust limitation periods in § 736.1008.

  2. 2

    Gather the record

    We collect the will or trust, any earlier versions, the court file, inventories and accountings. A qualified trust beneficiary may request a complete copy of the trust instrument (Fla. Stat. § 736.0813(1)(c)) and an annual trust accounting (§ 736.0813(1)(d)).

  3. 3

    File or respond

    Estate disputes are raised by petition or objection in the probate case. Most trust proceedings are filed as a complaint under the Florida Rules of Civil Procedure (Fla. Stat. § 736.0201(1)).

  4. 4

    Discovery

    The parties exchange documents and take depositions of witnesses, the drafting attorney, financial institutions and, where capacity is at issue, treating physicians.

  5. 5

    Mediation

    A court may refer all or part of a filed civil action to mediation (Fla. Stat. § 44.102(2)(b)). Mediation communications are confidential, with limited exceptions (§ 44.405(1)), so the family can talk about settlement without creating trial evidence.

  6. 6

    Hearing or trial

    If the case does not settle, the court decides it. In a will contest, the proponent first proves formal execution, and the contestant then carries the burden of proving the grounds (Fla. Stat. § 733.107(1)).

  7. 7

    Fees and final orders

    The court may decide who pays the fees and from whose share (Fla. Stat. §§ 733.106(4), 733.609(2), 736.1004(2)), and enters orders that carry out the result, such as revoking probate, removing a fiduciary or directing repayment.

Why Choose Yergey & Yergey

How Yergey & Yergey Approaches Probate Disputes

A probate dispute is a lawsuit inside a family's estate, trust or guardianship case. It asks whether a will is valid, whether a fiduciary should be removed, whether a trustee broke a duty, or whether a person needs a guardian at all. These cases run on statutes and deadlines, and on what the family can live with afterward.

  • Deadlines first

    Florida gives an interested person 3 months after service of the notice of administration to object to a will (Fla. Stat. § 733.212(3)), and a beneficiary can lose a breach-of-trust claim 6 months after an adequate trust disclosure and limitation notice (Fla. Stat. § 736.1008(2)). Our first step in a new dispute is to find out which clocks are running.

  • Two certified mediators

    Both partners, David A. Yergey III and David A. Yergey, Jr., are Florida Supreme Court Certified Circuit Court Mediators. We prepare a dispute with settlement in view from the start, because many families would rather resolve an estate fight than try it.

  • Fees addressed up front

    Florida's fiduciary statutes let a court award fees and charge them against a party's share of the estate or trust (Fla. Stat. §§ 733.106(4), 733.609, 736.1004). Before you file or answer anything, we explain how those rules could apply to you.

  • Fiduciaries and families

    We represent personal representatives, trustees and guardians whose administration is being questioned, and beneficiaries, heirs and relatives who are raising the questions.

  • Tax training

    David A. Yergey III holds an LL.M. in Taxation from the University of Alabama School of Law. Tax questions often sit inside estate and trust disputes, from how a settlement is structured to who bears the tax on a distribution.

  • In Orlando since 1928

    Yergey & Yergey, P.A. was founded in Orlando in 1928. Our office is at 910 N. Fern Creek Avenue; Orange County probate, trust and guardianship cases are heard at the Orange County Courthouse, 425 N. Orange Avenue.

Documents

The Disputes We Handle

Most probate litigation falls into five groups. Each tab gives the governing statute and the first point to know; the linked pages go further.

Contesting a Will

Fla. Stat. §§ 732.5165, 733.107, 733.212

A will, or any part of it, is void if its execution was procured by fraud, duress, mistake or undue influence (Fla. Stat. § 732.5165). A will can also fail because the testator was not of sound mind (§ 732.501) or because it was not signed and witnessed as § 732.502 requires. An interested person served with the notice of administration must object within 3 months after service (§ 733.212(3)). See contesting a will in Florida for the grounds, the burden of proof and the deadlines.

Who Pays the Lawyers in a Probate Dispute

Florida does not apply one rule to every estate dispute. In probate proceedings, costs may be awarded as in chancery actions (Fla. Stat. § 733.106(1)), and when fees are paid from the estate the court may assess them against one or more persons' parts of the estate, weighing factors such as the strength of each side's position and who prevailed (§ 733.106(4)(b)–(c)). The court may do so without finding bad faith (§ 733.106(4)(d)).

In actions for breach of fiduciary duty against a personal representative or a trustee, the court shall award taxable costs, including attorney fees, and may direct payment from a party's interest in the estate or trust or enter a judgment against the party (Fla. Stat. §§ 733.609, 736.1004). A will provision that tries to penalize a beneficiary for contesting is unenforceable (§ 732.517), and so is a similar trust provision (§ 736.1108(1)), but those rules do not protect a contestant from a fee assessment.

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Frequently Asked

Probate Litigation FAQs

What is probate litigation in Florida?
Probate litigation is any contested proceeding about a decedent's estate, a trust or a guardianship. Common examples are will contests under Fla. Stat. § 732.5165, petitions to remove a personal representative under § 733.504, breach-of-trust claims against a trustee under § 736.1001, objections to creditor claims under § 733.705, and contested incapacity proceedings under § 744.331. Most estate disputes are heard in the probate case itself; most trust disputes are filed as civil complaints (§ 736.0201(1)).
How long do I have to challenge a will in Florida?
If you were served with the notice of administration, you must file any objection to the will's validity within 3 months after service, or the objection is forever barred (Fla. Stat. § 733.212(3)). The period can be extended only if the personal representative misstated the deadline. All objections must be filed no later than the earlier of the personal representative's final discharge or 1 year after service of the notice of administration.
Can a beneficiary sue a trustee or personal representative in Florida?
Yes. A personal representative's fiduciary duty is the same as a trustee's, and a personal representative is liable to interested persons for loss caused by a breach (Fla. Stat. § 733.609(1)). A trustee who violates a duty owed to a beneficiary commits a breach of trust (§ 736.1001(1)) and is liable for the greater of the loss or the trustee's profit from the breach (§ 736.1002(1)). Removal is also available (§§ 733.504, 736.0706).
Do probate disputes have to go to trial?
No. Parties can settle at any point, and a court may refer all or part of a filed civil action to mediation (Fla. Stat. § 44.102(2)(b)). What is said in mediation is confidential, with limited exceptions (§ 44.405(1)). Both of our partners are Florida Supreme Court Certified Circuit Court Mediators. If the dispute does not settle, the judge decides it after a hearing or trial.
Who pays attorney fees in a Florida probate dispute?
It depends on the claim. In breach-of-fiduciary-duty actions against a personal representative or trustee, the court shall award taxable costs including attorney fees, and may charge them against a party's share or enter a judgment (Fla. Stat. §§ 733.609, 736.1004). In other probate proceedings, the court may assess fees paid from the estate against a person's part of the estate, considering factors such as the merits and who prevailed (§ 733.106(4)).
Is a no-contest clause enforceable in Florida?
No. A will provision that tries to penalize an interested person for contesting the will or bringing other estate proceedings is unenforceable (Fla. Stat. § 732.517). The Florida Trust Code says the same about penalty clauses in trusts created on or after October 1, 1993 (§ 736.1108). A contestant can still be charged with fees under § 733.106(4) if the contest is weak.