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Why Do We Need Probate?


Far too often, an owner of real property (which can encapsulate both houses or land) dies without going through the process of deeding the real property over to another living person. When this occurs, the Florida property must go through probate.

But – why?

Many unsuspecting family members have been thrown into the intricate process of pushing an estate through probate. While dealing with unfamiliar legal processes is likely the last thing you want to do after losing a dear friend or loved one, the probate process was developed over time for an important purpose. This article will go over a few of the major purposes that are served by the Florida probate process being in place.

Certainty of Ownership

The court-ordered probate orders are key in informing any buyer or property or insurance companies that the property being purchased and/or protected has been properly deeded/bought.

When a valid heir takes possession of property, it becomes theirs. But there may be any number of heirs – or any number of people purporting to be an heir. How does anyone know who really owns what, or what percentage of ownership goes to what legitimate heir? These are the kinds of questions that putting an estate through the probate process susses out.

Why Isn’t a Will Enough?

So it makes sense that society would want to ensure that there is a legitimate way to determine who inherits what from an estate. But why, then, can we not just rely on the last will and testament?

As many readers will be familiar, a last will and testament is a legal document which can be used as one of the most important tools in estate planning. If a deceased family member drafted a last will and testament, why can’t their family simply follow the dictates of the will, and otherwise avoid the probate process?

There are several questions to consider here:

  1. How does everyone know that the will that is being produced is legitimate?
  2. How does everyone know that the will that is being produced is the last one that was ever drafted? What if the deceased wrote a will nearer in time to their death, and that newer will is actually the legitimate one?
  3. There are many ways that a will can be made invalid, such as the deceased was coerced or forced to write the will. How does everyone know that the will being produced is legitimate, valid, created when the deceased was of sound mind, and not under undue influence from another?
  4. What if the Will was drafted in a way that Florida law does not allow – such as a will leaving property in a trust for a surviving spouse? What happens/what is the family supposed to do under directives that cannot be followed out under the law?

As you can see, there are several instances (which are bound to occur, sooner or later) that have created the need for the probate process to be implemented when a testator dies and their estate was not previously deeded over to a living person. But there are several estate planning tools that can be utilized by an experienced attorney to help Testator’s largely avoid the need for probate in their estate.

Contact Suncoast Civil Law

The experienced Sarasota wills & probate lawyers at Suncoast Civil Law can help you in any stage of the wills and probate process. Whether you would like to discuss estate planning options, or you have a contentious probate litigation at hand, our experienced team can help. Contact us today to begin discussing your case.