Why do we even need probate when a landowner dies?
When an owner of real estate (houses or land) dies without having deeded the property over to someone while the owner was alive, probate orders of some kind are always needed. Why? Because there is no way for a buyer of the property, and the company which issues title insurance for the purchase, to know who the heirs are, unless there is a court order. We cannot count on people just recording some affidavit or family tree to show the heirs because some people lie, or perhaps they are misinformed.
But what if the owner leaves a Last Will? Why can’t we just record that and show title passing to the heirs under the Will?
Good question, and the answer has several parts:
- How does everyone know the Will you record is the Last Will, that the owner did not later make a newer Will that replaced the Will you have?
- How do we know the Will is valid and that the person making the Will was of sound mind and not under undue influence by someone? This is especially true if the Will leaves the estate to anyone except “all my children in equal shares.”
- What if the Will violates one of Florida’s unusual restrictions on homestead, such as leaving it in trust for a surviving spouse, which is not allowed? What happens to the title then?
So, whether you like it or not, probate is going to be needed to transfer title to land and houses when the now-deceased owner failed to avoid probate with a deed while alive.