I’m attorney Reed Bloodworth, Founder and CEO of Bloodworth Law, PLLC.

I want to talk to you about the differences in probate or estate litigation and trust litigation.

Differences in Probate or Estate Litigation and Trust Litigation

Probate or Estate Litigation

Yes, there are differences in probate or estate litigation and trust litigation. Probate and Estate Litigation is the litigation pertaining to the decedent’s will.

Trust Litigation

Trust litigation is litigation pertaining to a decedent’s trust. So when you hear trust litigation or probate litigation or estate litigation, there are some distinctions.

You should first know that probate litigation and estate litigation are the same things. These words are interchangeable.

What is Probate?

So what is probate? Probate is the formal process by which a will is submitted to a court. The will is authenticated and then the court appoints someone to be a personal representative.

Throughout 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. 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 a 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 the other would-be beneficiaries who believe they should have received this. All of this takes place within probate proceedings in the court.

Trust Litigation

This is different than trust litigation. Typically trust litigation involves a decedent’s trust which is an independent action. It does not take place within 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.

Oftentimes, the trust cases I’m involved with relate 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: 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.

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. Whereas in a trust litigation case you are involved with the just normal rules of Florida civil procedure, according to Florida Statute Chapter 736.

So again, there are different types of rules governing the procedure by which you might litigate under.

Probate and Trust Similarities

Now there are some similarities. 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, in both cases, you would typically see an undue influence claim a lack of capacity claim or tortious interference with the testimony or expectancy claim. The body of case law for these is the same.

Carpenter Factors

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. The court lists certain factors a court should consider to determine if undue influence occurred.

So while there are definite differences in 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.

Reed Bloodworth is Founder and CEO of Bloodworth Law, PLLC. Talk with the Bloodworth Law Probate or Estate Litigation, or the Trust Litigation team about what happened to you.