Why Do We Even Need Probate, And What Does The Probate Court Do?
You probably know that if you die with a will, your property will be distributed in accordance with the wishes stated in the will. Additionally, if you die without a will, Florida law has intestacy statutes, which will distribute your property by law—in other words, the law will say which of your relatives or descendants get what, in the event you didn’t do that yourself through a will.
So what is the purpose of probate, if all of this is already established one way or the other?
The problem is that although Florida law (or your will) may say who gets what, that doesn’t automatically title or transfer legal property in or to anyone’s name.
Look at a house: if you die without a will and your son gets the house per Florida’s intestacy statutes, that doesn’t change the deed, or the public records—they all still list you as the owner, and not your son, who is supposed to now be the owner.
It would take an order of the court to actually effectuate the wishes of your will or Florida law. That’s what probate court does.
Probate court also pays debts that may be owed by the estate and satisfies its creditors. Before you ask why on earth you would want to do that, the timeline for creditors to make claims on an estate is much shorter if there is a probate process, then if there is not. Without probate, creditors have much more time to make claims on property.
Probate Is Usually Required
This all makes it sound like filing probate or not filing probate are choices; they are not. In most cases, probate is required by law (and as discussed above, practically necessary for beneficiaries to get any use, ownership or possession of the deceased’s property anyway).
Anybody who has possession of any will has to file it in probate court. One of the probate court’s jobs is to validate the will. So long as there are no challengers or contests or allegations of forgery or coercion, the validation process is usually quick.
If there is no will, the probate court has the duty of finding those who will inherit the property. Sometimes this is easy; if a spouse or children are around, involved, and local, this may be a formality. But when there are none, it may take time and investigation to find distant relatives who may not even be local, who stand to inherit per intestate laws.
Probate court also does other things that are necessary. For example, if the deceased was owed money, the court will oversee collection of those funds as against third parties. Objections to fraudulent creditor claims will be heard by the probate court. Placement of minor children, either with surviving parents or as directed by the will, can also be done by the probate court.
Questions about your estate or about the probate process? Contact the Tampa probate lawyers at the Gilbert Garcia Group, P.A. today.