Florida Probate Statute 733.109: Revocation of Probate
Probate is the process during which the will of a decedent is filed with the Florida circuit court, and a determination is made by the judge regarding its validity. If the judge determines that the will is valid, then the will will be admitted to probate. A personal administrator will also be appointed and charged with managing the tasks involved with managing the estate and distributing assets to the beneficiaries named in the will. Probate is based on a determination that the will is valid. However, there are instances in which after the will is admitted to probate and administration is well underway, a petition is filed challenging probate. If the petition is granted, probate will be revoked. To learn more about the process of revoking probate and the consequences thereof, including the requirements of Florida Statutes, section 733.109- Revocation of probate, contact a skilled Fort Lauderdale probate attorney at the Law Offices of Stephen Bilkis & Associates.Revocation of Probate
Revocation of probate in Florida refers to the circuit court vacating or annulling a prior order admitting a will to probate. Essentially, the revocation process is a way to contest a will after it has already been admitted to probate. Oftentimes objections to wills are filed at the time a petition has been filed to admit the will to probate. As a result, if the objection is upheld by the court, the will is never admitted. The revocation process is another option for petitioning the court to throw out a will that is invalid.
Under FL. Stat, section 733.109- Revocation of probate, an interested party can initiate a proceeding to revoke probate by filing a petition with the court having jurisdiction over the administration. This would the court that admitted the will to probate and issued the letters of administration to the personal representative. An interested party would be anyone who would be impacted by the outcome of the proceeding. Typically this would be the personal representative, beneficiaries, beneficiaries under prior wills, and statutory heirs. A proceeding to revoke the probate of a will can be commenced anytime during the probate proceeding, as long as the final discharge of the personal representative has not occurred.
A petition to revoke probate may be distracting to the personal representative. Nonetheless, as an experienced probate lawyer in Fort Lauderdale will explain, while the petition for revocation of probate is pending, the personal representative is required to continue his (or her) administrative duties. However, the personal representative is not permitted to make distributions of assets to anyone if it would compromise the rights of those who are challenging probate.
If during probate and prior to the filing of the petition to revoke probate, the personal representative sold estate property, revocation of probate will not impact such transactions as long as the property was purchased in good faith from the personal representative prior to an order of revocation.Petition for Revocation of Probate
A petition for revocation of probate must state the interest of the petitioner in the estate. In other words, it must state if the petitioner is a beneficiary, heir, or some other interested party. The petition must also state the facts constituting the grounds on which revocation is demanded. Examples of possible grounds include duress, fraud, undue influence, or mistake. Just like a petition to object to probate, the burden is on the proponent of the will to establish prima facie its formal execution and attestation. The proponent is typically the personal representative, but could be a beneficiary or another party. Thereafter, the contestant shall have the burden of establishing the grounds on which revocation sought. To learn more about the process for petitioning the court to revoke probate including grounds, speak to an experienced Fort Lauderdale probate lawyer.Consequences of Revocation of Probate
If probate is revoked, the consequences may include:
- Probate of prior will. If there is prior valid will, the court may probate that will. This means that the personal representative will manage the estate and distribute assets according to that will.
- Intestate succession. If there is not a prior valid will, revocation of probate would mean that there is no will. As a result, the estate would be distributed based on the rules of intestate succession. This means that the assets would be distributed to the decedent’s legal heirs such as the surviving spouse and children.
- Terms invalidated. The court may determine that only part of the will is void. This means that the will is not completely revoked. The personal representative must proceed based on the will, ignoring voided terms.
- Self-proof of will : § 732.503, Fla. Stat.
- Penalty clause for contest : § 732.517, Fla. Stat.
- Will contests : § 732.518, Fla. Stat.
- Proof of wills : § 733.201, Fla. Stat.
(1) A proceeding to revoke the probate of a will shall be brought in the court having jurisdiction over the administration. Any interested person, including a beneficiary under a prior will, unless barred under s. 733.212 or s. 733.2123, may commence the proceeding before final discharge of the personal representative.
(2) Pending the determination of any petition for revocation of probate, the personal representative shall proceed with the administration of the estate as if no revocation proceeding had been commenced, except that no distribution may be made to beneficiaries in contravention of the rights of those who, but for the will, would be entitled to the property disposed of.
(3) Revocation of probate of a will shall not affect or impair the title to property purchased in good faith for value from the personal representative prior to an order of revocation.Contact the Law Offices of Stephen Bilkis & Associates
If you believe that the will of a loved one that has been admitted to probate is invalid, you must file a petition to revoke probate and understand the requirements of Florida Statutes, section 733.109- Revocation of probate. To ensure that your petition is filed properly and that your legal rights are protected, it is critical to have an experienced will contest attorney on your side. The attorneys at the Law Offices of Stephen Bilkis & Associates can help. We have over 20 years of experience representing clients in matters related to settling estates, estate litigation, disputes with creditors, and understand the intricacies of the Florida Probate Code. Contact us attorneys at 561-710-4000 to schedule a free, no obligation consultation regarding your case.