A Guide to Probate Problems Between Siblings

Conflicts between siblings during the probate process often arise when it comes to the division of assets. Litigation between siblings may cause a rift and lead to emotional family conflicts. An experienced probate litigation attorney can help you navigate family probate problems, and work towards the fair and proper resolution or division of an estate.

What are the most common probate problems with siblings?

The most common probate problems with siblings include:

• Challenge of a parent’s last will and testament
• Setting aside a transfer or conveyance of real estate or other assets a parent made to another sibling
• Sibling discord over the appointment of a personal representative
• Differences in the share of the estate gifted to each sibling
• Reimbursement for the maintenance of estate assets

While these situations portray common scenarios, other issues may arise during the probate process. It is fundamental to hire a probate litigation attorney to guide you through these conflicts.

What if a sibling will not join in the probate process?

An estate can still be opened if siblings refuse to participate. Proper notice of the opening of an estate to all the siblings suffices to obtain letters of administration.  In the event a sibling objects to the opening of an estate, the court may request a hearing. In this step, it is essential to be represented by an experienced probate attorney.

How do I protect my inheritance from siblings?

If you believe your siblings have exerted undue influence over a parent or otherwise misappropriated estate assets, you can protect your inheritance by taking legal action. A probate attorney can review the circumstances and advise on the best course of action.  Many of these circumstances lead to legal disputes between siblings. Common scenarios include litigation over the challenge of a will and removal of a sibling as personal representative.

How is an estate divided between siblings?

A person’s last will and testament often includes a provision on the division of assets amongst the person’s children. Sometimes parents choose to split their estate assets equally between siblings. However, situations may arise where parents opt to leave a particular child a larger portion of their estate. In Florida, a parent may allocate their inheritance as they wish amongst their children, and may even legally disinherit a child.

In some instances, parents elect to give their children different percentages of their estate. Common examples of differences in the portion of an estate received by siblings include:

• When a sibling received greater financial support from their parents during the parents’ life.
• When a sibling is in a significantly better/worse financial position
• When a sibling cared for the parent throughout their lifetime
• When a sibling has a larger ownership interest in a family business
• When a sibling is disabled and/or not capable of caring for themselves

When a parent passes without will, their assets are distributed in accordance with the laws of intestacy. The intestate estate is divided equally among the children of the decedent.  However, certain factors may affect intestacy distributions among siblings, such as whether they are children from different marriages.  

Can a sibling with power of attorney prevent other siblings from seeing a parent?

A sibling with power of attorney typically cannot prevent other siblings from seeing a parent. Certain circumstances may prevent a sibling from seeing a parent such as a court preventing visitation.

Can a sibling contest a power of attorney?

Yes, a sibling may contest a power of attorney on different grounds. Some grounds to a contest to a durable power of attorney include undue influence, lack of capacity, and duress in the execution of the power of attorney.

Pursuant to Florida law, a sibling with power of attorney must act in the best interest of the incapacitated parent, and cannot use their authority as self-serving. If you believe that your sibling who is the agent pursuant to a power of attorney is abusing their position and improperly taking your parent’s assets, you should contact a probate litigation lawyer immediately to discuss your legal options.

When do I need a probate litigation lawyer?

Probate problems with siblings are often complicated and usually highly emotionally charged. A probate litigation lawyer can help protect your interests and those of your loved ones.