Probate administration is the legal process that follows a death, moving a decedent’s affairs toward final distribution to heirs and beneficiaries. It validates the will, settles debts, and winds up the estate under court supervision. When a will is contested, that process does not stop. It continues, under extra scrutiny, while the dispute over the will’s validity is resolved.
This page covers what happens to a Florida estate while a will contest is pending: who continues to run the administration, what the personal representative can and cannot do, whether distributions stop, who pays the legal costs, and how the contest deadline fits into the broader probate timeline. For the grounds to contest a will and how that fight is won or lost, see our companion page, Contesting a Will in Florida. For the exact deadlines, see Deadlines for Contesting a Will or Trust in Florida.
What Contested Probate Means
A contested will is a will facing a legal challenge from an interested party, usually a beneficiary, an heir who was left out, or someone with a stake in the estate. Common grounds include lack of testamentary capacity, undue influence, fraud, forgery, duress, or a claim that a later document revoked the one offered for probate. A contested probate is simply the administration of an estate while one of these challenges is pending in court. It is a different situation from an uncontested probate in one important respect: the personal representative’s authority, the estate’s assets, and the eventual distribution are all under a cloud until the will contest is resolved, even though the day-to-day administration keeps moving.
How a Will Contest Changes Probate Administration
In an uncontested probate, the court admits the will, the personal representative marshals assets, pays debts, and distributes what remains. A contest adds steps without stopping that process:
- An interested party files the will contest and the court notifies the other interested parties, beneficiaries, heirs, and creditors, so everyone with a stake knows a challenge is pending.
- The parties typically proceed through discovery and an evidentiary hearing, sometimes with expert witnesses on the testator’s capacity, undue influence, or the authenticity of the document itself.
- Courts often encourage or require mediation before a full hearing on the contest.
- Administration almost always takes longer than it would have otherwise, and the legal costs of the contest come out of the estate before anyone sees a final distribution.
The Personal Representative’s Duties Continue
A pending will contest does not relieve the personal representative of the ordinary duties of the job. Under Fla. Stat. § 733.607, the personal representative takes possession or control of the decedent’s property, other than protected homestead, and must take all steps reasonably necessary for the management, protection, and preservation of the estate until it is distributed. That duty exists whether or not anyone is challenging the will. In practice, it means continuing to secure and insure estate property, keep accounts and investments in order, pay the estate’s legitimate bills, and otherwise keep the estate intact while the contest plays out, rather than setting administration aside until the dispute ends.
When No One Has Qualified Yet: Curators and Administrators Ad Litem
Sometimes a will contest surfaces before anyone has been appointed personal representative, or the proposed personal representative cannot act because they are also a party to the dispute. Florida law has two tools for that gap. Under Fla. Stat. § 733.501, the court may appoint a curator, on notice or, if estate property is in real danger of being wasted, destroyed, or removed, without notice, and a curator may be authorized to perform any duty or function of a personal representative until one is qualified. Under Fla. Stat. § 733.308, if the estate needs to be represented in the litigation and the personal representative is unable to do so, typically because of a conflict of interest, the court appoints an administrator ad litem, without bond, for that specific purpose. Neither tool decides who ultimately serves as personal representative. Both exist so the estate has someone with authority to act while that question is being litigated. For the separate question of removing a sitting personal representative, see our article on Removing a Personal Representative in Florida.
Do Distributions Stop While a Will Contest Is Pending?
Florida law already builds in a waiting period before any distribution has to happen. Under Fla. Stat. § 733.801, no personal representative is required to pay or deliver any devise or distributive share, or to surrender possession of any land, until five months after letters are granted, contest or no contest. Once a petition to revoke probate is filed, Fla. Stat. § 733.109(2) adds a specific limit: the personal representative keeps administering the estate as if no challenge had been filed, but may not make any distribution that would defeat the rights of the people who would take the property if the will were set aside. In practice, final distributions are usually held until the contest is decided, so the estate does not end up paying the wrong people. Ongoing, legitimate expenses of administration, valid debts, and taxes are not usually put on hold in the same way.
Bond Requirements During a Contested Probate
Under Fla. Stat. § 733.402, every fiduciary who receives letters must file a bond with surety unless the requirement is waived by the will or by the court; banks and trust companies authorized to act as personal representative are exempt. A pending will contest is exactly the kind of circumstance where a beneficiary or heir may ask the court to require a bond, increase an existing bond, or add additional surety, since the dispute itself raises the stakes if the person holding the estate’s assets turns out not to be entitled to serve.
Who Pays the Legal Costs of a Contested Probate?
Under Fla. Stat. § 733.106, the court has discretion to award costs and attorney’s fees from the estate in a probate proceeding, and it may direct from which part of the estate they are paid. A person nominated as personal representative, or a proponent of the will, who acted in good faith can recover fees even if probate is ultimately denied or revoked. The statute lists factors the court may weigh in deciding whether to assess costs against a particular beneficiary’s share instead of the estate generally, including the relative impact on that person’s share and whether someone unjustly increased the costs of the litigation, and the court does not have to find bad faith to make that assessment.
Timing: How the Contest Deadline Fits the Probate Timeline
A will contest has its own clock, separate from the administration timeline described above. Under Fla. Stat. § 733.212, an interested person who is served with the notice of administration generally has three months from service to object to the will’s validity or to the personal representative’s qualifications. Once a contest is filed within that window, the burden-of-proof framework in Fla. Stat. § 733.107 takes over: the proponent of the will first proves it was properly executed, then the burden shifts to the contestant to prove the grounds for the challenge, with a presumption of undue influence available in the right circumstances. Both the exact deadline mechanics and the grounds and burden-of-proof analysis are covered in full on our other pages linked above. This page assumes a contest has already been filed and focuses on what happens to the estate while it is pending.
Who Is Involved in a Contested Probate
- The personal representative continues to manage the estate’s affairs and carry out the administration, and may face challenges from beneficiaries contesting the will along the way.
- Beneficiaries and heirs at law have a direct financial stake in how the contest comes out, and in an intestate situation it is heirs at law, not named beneficiaries, whose rights are affected.
- Creditors still have claims against the estate that must be identified and resolved regardless of the will contest.
- The court oversees the administration and ultimately resolves the contest itself.
- Expert witnesses, such as medical professionals or forensic document examiners, are often needed on questions like capacity, undue influence, or authenticity.
- Mediators are frequently used, by court encouragement or party agreement, to resolve a will contest without a full evidentiary hearing.
Frequently Asked Questions
Can the personal representative sell estate property while a will contest is pending?
Generally yes, for ordinary administration purposes such as paying valid debts or preserving the property’s value, since Fla. Stat. § 733.607 charges the personal representative with managing and preserving the estate throughout administration. Selling or encumbering assets in a way that could prejudice the outcome of the contest is a different matter and is better addressed with the court’s guidance before acting.
Does a will contest freeze the entire estate?
No. Administration continues: the personal representative keeps managing and protecting estate property under Fla. Stat. § 733.607, and ordinary expenses, valid debts, and taxes are still paid. What typically pauses is the final distribution of devises and distributive shares to beneficiaries, until the contest is resolved.
What if the person who was supposed to serve as personal representative is part of the dispute?
The court can appoint a curator under Fla. Stat. § 733.501 to act in the meantime, or an administrator ad litem under Fla. Stat. § 733.308 if the estate specifically needs representation that the personal representative cannot provide because of a conflict.
Who ultimately pays for the will contest litigation?
Under Fla. Stat. § 733.106, the court has discretion to pay costs and attorney’s fees from the estate, or in some circumstances to assess them against a particular beneficiary’s share, based on factors set out in the statute rather than a fixed rule.
If you are administering a Florida estate where a will contest has been filed, or you are concerned one is coming, our office handles both the litigation itself and the ongoing administration around it. Call 877-206-0022 for a free consultation.
We specialize in Florida estate and trust litigation. Looking for more information? Check out these articles:
- Contesting a Will in Florida: Grounds, Burden of Proof, and Deadlines
- Deadlines for Contesting a Will or Trust in Florida
- Florida Will and Trust Contests Part I: An Overview
- Removing a Personal Representative in Florida
- Taking Action on Homestead: Florida’s Personal Representative’s Lien
- Personal Representative Fees in a Florida Probate: Establishing Entitlement and Objections
- How to Challenge or Contest a Trust in Florida
- Removal of a Trustee Under Florida Law