Probate is the formal process by which a decedent’s will is submitted to the court, authenticated. Meaning the court accepts, yes, this is a will. It is properly executed. Then the personal representative is established and the court oversees the personal representative. As the personal representative gathers all of the decedent’s assets, takes care of whatever outstanding debt there is, and then disperses the assets of the decedent pursuant to the terms of the will. That, in a nutshell, is the probate.
Probate litigation is also called estate litigation. You may have heard both terms. Probate litigation is litigation that happens within the formal probate process. So for example, someone passes away. The personal representative submits the will for probate. The letters of administration are issued and the personal representative sends these out to people that might be interested, perhaps that the decedent’s children or stepchildren or some family member.
One of those family members perhaps son or daughter receives this and says I don’t believe this is accurate. I think something happened here and this will is improper. So probate litigation would be if that person filed a petition to revoke the probate or a petition to remove the personal representative because they believe something improper has taken place.
Some common probate litigation state litigation claims are undue influence lack of capacity and tortious interference with testamentary expectancy. These are claims that someone who believes they should have been a beneficiary to an estate might bring in a probate case and that all takes place within a formal probate process. So the litigation takes place before the probate judge.
It doesn’t take place as an independent action outside of probate in like circuit civil for example. This type of litigation, probate litigation or estate litigation is governed by certain rules. So you have the overriding rules Florida rules of civil procedure. But specific to probate you also have the Florida Probate Code.
The Probate Code provides certain sets of rules that have to be followed inside the context of probate litigation. You also have Florida Statute Chapter 733. This pertains to wills and probate and these are laws that you need to be familiar with in order to litigate in probate.