Estate Planning & Probate

Sarasota Probate Litigation, Probate and Estate Planning Attorneys

Probate litigation

Richard J. Cole, III is an experienced probate and trust litigator. He represents beneficiaries, heirs, personal representatives, trustees and creditors in contested estate and trust matters in Sarasota, Manatee, Charlotte and DeSoto Counties, and he has handled related appeals in Florida’s appellate courts and in federal court. When a family dispute over a will, a trust or an inheritance turns adversarial, it becomes trial work, and it should be handled by a lawyer who tries cases.

Contested matters we handle include:

• Will contests based on undue influence, lack of testamentary capacity, fraud or improper execution
• Trust disputes, including actions to construe, reform, modify or set aside a trust
• Breach of fiduciary duty claims against personal representatives, trustees, agents under a power of attorney and guardians
• Petitions to remove or surcharge a personal representative or trustee
• Objections to accountings, fees and distributions
• Actions to recover estate or trust assets transferred before or after death
• Disputes over beneficiary designations on life insurance, annuities and retirement accounts
• Homestead and elective share disputes, including spousal rights claims
• Creditor claims and objections in probate
• Guardianship and capacity disputes
• Probate and trust matters that intersect with bankruptcy, insolvency and creditors’ rights

Probate administration in Florida

Probate is the court process for identifying a deceased person’s assets, paying valid debts, expenses and taxes, and distributing what remains to the people entitled to receive it. In Florida the case is filed in the circuit court for the county where the decedent resided.

Formal administration

Formal administration is the standard Florida probate proceeding. The court appoints a personal representative, letters of administration are issued, notice is published and served on known creditors, and the estate is administered under court supervision until it is closed. Florida’s probate rules generally require the personal representative to be represented by an attorney.

Summary administration

Summary administration is a shorter proceeding available in Florida when the value of the estate subject to probate does not exceed $75,000, or when the decedent has been dead for more than two years. No personal representative is appointed; the court enters an order distributing the assets directly.

Ancillary administration

Ancillary administration is used when someone who lived in another state or country dies owning real property or other assets located in Florida. This comes up often in Sarasota and Manatee Counties, where a great many owners are seasonal residents.

Creditor claims and probate deadlines

Probate runs on strict deadlines. A creditor generally must file its claim within three months after the first publication of the notice to creditors, or within thirty days after being served with the notice, whichever is later. Objections to the validity of a will and to the qualification of a personal representative are also subject to short deadlines that begin running when the notice of administration is served. Missing one of these deadlines can end an otherwise strong claim, so getting advice early matters more here than in almost any other area of practice.

Estate planning

A sound estate plan does two things: it makes your wishes enforceable, and it reduces the chance that your family ends up in the kind of litigation described above. We prepare and review:

• Wills
• Revocable living trusts
• Durable powers of attorney
• Designations of health care surrogate and living wills
• Preneed guardian designations
• Beneficiary and pay-on-death designations, coordinated with the rest of the plan
• Homestead and Florida residency considerations
• Planning for blended families, closely held businesses and out-of-state property
• Exemption and asset protection planning informed by the firm’s bankruptcy and creditors’ rights practice

Because our practice also includes bankruptcy, insolvency and commercial litigation, we review an estate plan the way a creditor or an opposing litigant would, and we draft with that in mind.

Frequently asked questions about Florida probate

How long does probate take in Florida?

A straightforward formal administration commonly takes several months to about a year. Summary administration can be considerably faster. A contested estate takes longer, depending on the issues raised and the court’s calendar.

Do I need a lawyer to open a probate in Florida?

In most formal administrations, yes. Florida’s probate rules generally require the personal representative to be represented by an attorney unless the personal representative is the sole interested person in the estate.

Can a will be challenged after it is admitted to probate?

Yes, but only within a short window after the notice of administration is served, and only on recognized grounds such as undue influence, lack of testamentary capacity, fraud or improper execution. If you are considering a challenge, act immediately.

What is undue influence?

Undue influence is over-persuasion, coercion or improper pressure that overcomes the free will of the person signing a will or trust. Florida courts consider factors such as whether the beneficiary was present at the signing, selected or procured the witnesses, knew the contents of the document, or had a confidential relationship with the decedent combined with active procurement of the gift.

Does a revocable living trust avoid probate?

A properly funded revocable trust can avoid probate as to the assets titled in it. Trusts are frequently left unfunded, which defeats their purpose, so the titling of assets matters as much as the document itself.

What happens if someone dies without a will in Florida?

Florida’s intestacy statutes decide who inherits, and the outcome may not match what the decedent would have wanted, particularly in blended families. A surviving spouse’s share depends on whether there are descendants and whether those descendants are also the spouse’s.

Talk to a Sarasota probate and estate planning attorney

Whether you need a will, need to open an estate, are serving as a personal representative or trustee, or are facing a contested probate or trust dispute, call Cole & Cole Law, P.A. in Sarasota at (941) 365-4055.

The information on this page is general in nature, is not legal advice, and does not create an attorney-client relationship. Results depend on the specific facts of each matter.