This space has discussed several times the way wills can be used as a part of a comprehensive estate plan. We have touched on the reasons the will document should be specific in its bequests and some of the language that can be used to give voice to a clear intent of the testator. We have also pointed out some of the reasons an heir or other interested party may challenge the validity of all or part of a will in probate court. So, is there any way to write a will to attempt to avoid the possibility of litigation after one's death?
Obviously, a clear and obviously valid will document goes a long way toward this goal. But, disputes can still occur. In Florida, most probate cases are conducted as "bench" trials, also known as "non-jury" trials. This means that the case is heard and decided by a judge. But, the Florida court system has a myriad of probate cases, and the judges assigned to them are often overworked. This means that there can be delays, and judges are sometimes concerned with clearing a caseload backlog as quickly as possible, thus giving cases less scrutiny then they might otherwise. So, what other option is there if a dispute arises?
Luckily, Florida Statute 731.403 creates the ability for a testator to enforce alternative dispute resolution in any probate contest that is not directly about the validity of the will itself. Basically, the statute simply states that a provision in a will that requires parties in dispute to go to arbitration, rather than the litigation process, is enforceable. It also provides that, unless otherwise specified in the will, any arbitration clause is considered to mean binding arbitration, in which the parties are bound by the decision made by the arbiter.
We all hope that after we die our family and friends will come together and help one another during a difficult time. Unfortunately, though, when inheritances are involved, sometimes disputes arise over probate assets. It may be wise to remember that, as part of a comprehensive estate plan, you may have options that will help avoid the time and expense of probate litigation.