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David Toback Motto
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How Flexible Are Probate Courts About Documents Filed Late?

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There is a popular saying in civil law that the law favors the vigilant.  This is why many legal processes have a statute of deadlines, which is a deadline by which you must file your claim or lawsuit if you want the court to consider your request for money from the party from which you are seeking it.  During the probate of the estate of a deceased person, the personal representative of the estate must issue a public notice that the estate has been opened.  Interested persons (anyone who believes they have a right to inherit from the estate, whether or not they are mentioned in the will) and creditors have three months from the date the notice appear to submit their claim.  (A 2019 amendment to the law clarifies how the courts calculate this three-month period.)  Upon receiving the claim, the personal representative formally serves the interested person with a request for affirmative defenses (a statement of reasons why the interested person is entitled to money from the estate).  The deadline to submit the affirmative defenses is 21 days after being served with the request for affirmative defenses.  It is up to the probate court’s discretion whether to accept the affirmative defenses if they are filed late.  If affirmative defenses by interested persons are an issue in the estate of which you are the personal representative, contact a Hillsborough County probate lawyer.

Last-Minute Allegations of Undue Influence

In 2007, Sidney rewrote his will, leaving the lion’s share of his estate to his wife Irene and designating her as the personal representative.  Sidney died in 2009, and his estate opened the estate for probate on June 10 of that year.  On August 21, Sidney’s grandson Matthew submitted a caveat (an objection to the will).  Irene served Matthew with a request for his arguments for his objection to the will on August 31, meaning that the deadline to submit these defenses was September 20.

Matthew submitted the arguments for his objection on September 21, a day after the deadline.  Instead of rejecting Matthew’s objection outright, the court asked Matthew to submit his affirmative defenses by December 15 and scheduled a hearing about the matter for December 22.  Matthew did, in fact, submit affirmative defenses, in which he argued that his grandfather was too ill in 2007 to consent meaningfully to the new will; therefore, he signed it due to undue influence from Irene.  Furthermore, Sidney’s previous will, signed in 2004, had left valuable assets to Matthew, whereas the 2007 will unfairly disinherited him.  Matthew did not, however, submit the affirmative defenses by December 15.  Instead, he submitted them on December 22, half an hour before the hearing.  The probate court did not accept the affirmative defenses, but the appeals court, after giving Matthew an earful about his chronic lateness, overturned the trial court’s decision, enabling Matthew to inherit a portion of his grandfather’s estate.

Contact an Attorney for Help

Your Tampa probate lawyer can help you build an estate plan that will help you provide for all your family members, even the ones with a punctuality problem.  Contact David Toback for help.

 

Resource:

casetext.com/case/rocca-v-boyansky

https://www.davidtobacklaw.com/decluttering-your-house-could-be-the-best-thing-you-can-do-for-your-estate-plan/

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