Why Is Florida Probate So Complicated?

  • Posted by Bruce McDonald
  • December 07, 2013
  • (0) Comments

We hear that question a lot. Some of the complexity is due to legal protections. Some of it is just unnecessary.

Compared to the probate systems in other states, according to some of our clients, Florida’s rules are complicated, complex and apparently designed so that a “consumer” (non-lawyer) cannot possibly work through it herself, no matter how intelligent or experienced she may be. 

A cynic might say that some lawyers have persuaded the Legislature (which passes the probate  laws) and the Florida Supreme Court (which passes the probate rules) to make it complicated so that each estate is guaranteed to be work for some lawyer, somewhere. 

While there may be a grain of truth in that, the more obvious reason why Florida’s probate system is so complicated is because it is highly protective of the rights of creditors and beneficiaries. Many of the legal steps which must be taken, in just the right way, are designed to enhance the possibility that a creditor’s claim will be paid or that a beneficiary has the right to object and get a court ruling if something appears “amiss.”

But also there are parts of Florida’s probate system that hang around for decades for no good reason, clogging up the system.  For example, if a Will must be “proved” by the Oath of a witness to that Will, who is not close to the Court,  that Oath must be signed before a notary public. OK, fine. But wait, there’s more.  Florida law requires that notary to be named in a petition filed with the Court, and the Court must issue a “Commission” to that notary in order to do what the notary does every day without a court order – verify the signer’s identity, watch him sign the paper, and then also sign the paper and put his stamp or seal on it.  So what exactly does being named a “Commissioner” gain anyone?  Nothing.  But it adds extra work, meaning extra cost, and unnecessary delay.    

So, some of the “complication” is legal protection, but some of it is just “dead wood.”