It’s been a year since my rich uncle Harry died in Florida. How long do I have to contest his will? It’s been two years since my mother died, and my brother keeps telling me her will is still in probate. When will I get my inheritance? My sister says our mom left everything to her and nothing to me, and I know that can’t be since mom always liked me best. How long do I have to contest her will in Florida?
These are all typical questions for Florida probate lawyers. We hear them all the time. There’s no simple answer. Each case is different. That’s because everyone who dies has different assets, family, last wishes, etc. But there are some general rules.
First, if the will has not been admitted to probate, then there’s probably still time to contest it. To admit a will to probate generally requires that a) a probate proceeding must be opened in the Florida county where the decedent resided at death, b) the signed original of the will must be filed with the clerk of that court, c) a petition for administration and supporting documents must be filed with the clerk, and d) the Florida probate court must enter an order admitting the will to probate. If the order has not been entered and if the probate proceeding remains open, then generally it’s not too late to contest the will. A will contest is something that a Florida probate lawyer can file.
Second, if the Florida probate court has entered an order to admit the will to probate, but the probate proceeding is still pending, then it might not be too late to contest the will. This is done by hiring a Florida probate lawyer to petition the court to revoke probate of the will. But, if the person who wants to contest the will was served with notice of administration (a special form with wording required by court rules), then the deadline to file a will contest is just three months after the date it was served.
Third, if the Florida probate court has entered an order of discharge of the probate estate, then it might be too late to contest the will. The Florida Probate Code says an order of discharge cannot be revoked based upon the discovery of a will or a later will.
So, can a Florida will be contested five years after the person who made it died? Sure, if it has not been admitted to probate, or if the probate proceeding is still pending and it’s less than three months after notice of administration was served. Of course, it all depends on the facts. There is probably some set of facts out there where a Florida resident’s will could be contested in any event, such as where fraud on the court is involved.
And, oh, I forgot to mention another rule. In Florida we don’t let anyone file a will contest until the person who made the will has died. Otherwise, it would discourage people from making wills.
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