Necessity for Florida Probate

It is very important to understand why it is necessary that a person's estate has to go through probate in the State of Florida. It seems like it should be a lot simpler than it is but once it is explained, I believe you will have a better idea of why your loved one's estate must go through Florida probate.

First of all, our society and the laws that are made by the legislature in the State of Florida about estates and inheritance are set forth in what probate attorneys refer to as the Florida Probate Code. It has resulted from many many generations of people who have gone before us. These statutes are the product of experience and commonly accepted social behavior and you will note that while they do give a decedent broad latitude in disposing of his/her assets since we live in a free country, they do place certain limits on a decedent's freedom of disinheritance, and if the decedent does not create a legally binding will to the contrary, these laws do set forth an Order of Heirs (intestate succession) who will take a decedent's assets grounded on principles of justice. The policy is to follow what they consider would be the natural object of a decedent's love. Florida Statute Section 732.102 and 732.103 state in material part:

732.102 Spouse's share of intestate estate.

The intestate share of the surviving spouse is:

1. If there is no surviving descendant of the decedent, the entire intestate estate.
2. If there are surviving descendants of the decedent, all of whom are also lineal descendants of the surviving spouse, the first $60,000 of the intestate estate, plus one-half of the balance of the intestate estate. Property allocated to the surviving spouse to satisfy the $60,000 shall be valued at the fair market value on the date of distribution.
3. If there are surviving descendants, one or more of whom are not lineal descendants of the surviving spouse, one-half of the intestate estate.

732.103 Share of other heirs.

The part of the intestate estate not passing to the surviving spouse under s.732.102, or the entire intestate estate if there is no surviving spouse, descends as follows:

1. To the descendants of the decedent.
2. If there is no descendant, to the decedent's father and mother equally, or to the survivor of them.
3. If there is none of the foregoing, to the decedent's brothers and sisters and the descendants of deceased brothers and sisters.
4. If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent's paternal, and the other half to the decedent's maternal kindred in the following order:
• To the grandfather and grandmother equally, or to the survivor of them.
• If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
• If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
5. If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.
6. If none of the foregoing, and if any of the descendants of the decedent's great-grandparents were Holocaust victims as defined in s. 626.9543(3)(a), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the descendants of the great-grandparents. The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004.
7. Additionally, while the legislature wants and needs to protect the proposed beneficiaries they have another very important class of people to protect and that is the creditors. The probate process protects creditors. This insures to society's benefit as a whole and insures that hospitals, doctors, credit card companies, banks etc. who are in good faith owed by the decedent are not left holding the bag while the beneficiary leaves with all the assets in tow. This would not be equitable and while if you are a beneficiary of a particular estate, you may wish this to be the case, but in another instance if you were a valid justifiable creditor, you would not want the system to operate against you.
8. Hence, it is a balancing act and the process is attempting to treat everyone fairly. So, if we all play by the rules of society, we will all be better off in the end.
9. These are the reasons we have developed an established probate process that works for all across the board. It is the best system I know of.