Differences in Probate or Estate Litigation and Trust Litigation

Probate and estate litigation is the litigation pertaining to the decedent’s will. Trust litigation is litigation pertaining to a decedent’s trust. So when you hear trust litigation or probate litigation or state litigation there are some distinctions. You should first know probate litigation and a state litigation is the same thing. These words are interchangeable.


Probate is the formal process by which a will is submitted to a court. It is authenticated and then the court appoints someone to be personal representative and through the process, the assets of the decedent are all gathered by the personal representative. The bills are all paid and then the assets are dispersed pursuant to the decedent’s will. Within probate, you would have probate and estate litigation.

Probate and Estate Litigation

That is litigation either pertaining to the person’s will or perhaps a creditor files a claim against the estate meaning that when the person passed away, that person owed money to a credit card company, or a bank or something of that nature and the creditor files a claim within the probate to make sure they get paid. Those types of claims can be contested by the personal representatives. Thus, you may have some probate litigation concerning a creditor’s claim.

I think more frequently, particularly in my practice, what I find is probate litigation involves a claim by a beneficiary, or would be beneficiary, against the personal representative, or some other beneficiary who is receiving a large benefit from the will that they believe they should not receive and that the other would be beneficiaries who believe they should have received this. All of this takes place within the probate proceeding in the court. This is different than trust litigation.

Trust Litigation

Typically trust litigation involves a decedent’s trust which is an independent action. It does not take place in the probate proceeding pertaining to someone’s will. Trust litigation is a separate cause of action where you would file a complaint in circuit civil court pertaining to some issue relating to the decedent’s trust. Often times, the trust cases I’m involved with relation to a beneficiary or would be beneficiary seeking to either have the trust set aside or having some portion of it set aside because they believe they were improperly removed.

Now I also defend those actions, I defend trustees and I defend personal representatives in both types of these actions. But those are kind of the key differences:

  1. Probate litigation takes place within a probate estate, whereas trust litigation takes place outside of that as an independent action. They are also governed by some different rules.
  2. Probate cases are often governed by the Florida Probate Code. In addition to the Florida rules of civil procedure, they also are governed by a different Florida statute than a trust case. So in a probate litigation case, you would oftentimes be involved with Florida Statute Chapter 733.
  3. Whereas in a trust litigation case you are involved with the just normal rules of Florida civil procedure and in Florida Statute Chapter 736. So again some differences there different types of rules governing the procedure by which you might litigate under.


  1. Those similarities typically take place in the types of causes of action one might bring in a probate or estate case and a trust case. For example, both cases you would typically see an undue influence claim a lack of capacity claim or tortious interference with the testimony or expectancy claim.
  2. The bodies of case law for these are the same. For example, for an undue influence claim, be it involving probate litigation or trust litigation, you’re going to rely on the seven Carpenter factors. Carpenter factors are a result of the Carpenter case that came out in Florida and the court lists certain factors a court should consider to determine if undue influence occurred.

So while there are definite differences between probate estate litigation and trust litigation, there are also similarities in terms of the types of case law and causes of action might be involved.

Add a Comment

Your email address will not be published. Required fields are marked *