In Florida, a common probate scenario occurs when beneficiaries inherit real property comprised of either a residence or vacant land.
Often the beneficiaries don't intend to keep the property and would like to sell it but their title insurance company has required them to first obtain clear title.* In this case, some form of a Florida probate court proceeding must occur to transfer the title to them.
In many instances the process of probating real estate is straightforward, particularly when the beneficiaries agree on the course of action.
THE SALE OF PROPERTY IN AN ESTATE
Without a doubt the greatest confusion regarding property in an estate is whether a home or vacant land can be sold without probate? The answer is "Yes. And no."
If a home or real property was purchased as husband and wife, then the presumption under Florida law is that the property is considered "tenancy by the entirety" which means that when either spouse dies, the property becomes the sole asset of the surviving spouse, who can then convey the property through a sale or otherwise, without the need for probate.
At the death of the second spouse (provided no one was subsequently added to the title while the second spouse was living), probate will almost certainly be required to correctly transfer the title to the heirs.
Title to property vests (becomes an immediate right) to the heir(s) on the date of death of the decedent.
This means that an heir(s) may enter into a contract to sell property but that all parties involved in the sale would need to be made aware of the need for probate before a final sale could take place. This is a 'contingency' sales contract and any heir(s) who are considering such a contract should seek legal counsel before doing so.
What if the property is a home? The first question is whether the home was the primary residence of the decedent and therefore homestead exempted?
By state law, Florida Constitution, Art. X,§ 4(a), a homestead is real property to the extent of 160 contiguous acres outside a municipality, or one-half of an acre of continuous land in a municipality, owned by a natural person, and the improvements thereon.
If the home was the decedent's homestead property, Florida law protects some or all of the homestead from being sold to satisfy most of the decedent's creditors' claims (other than certain debts such as mortgage or construction liens or valid federal and state taxes and assessments).
In order to maintain this post-death exemption, the homestead must pass to a person or persons who are within the class of the deceased owner's "heirs at law."
If this is the case, the court should be made aware of this through a specific petition in order to preserve the homestead protection.
Like many such exemptions or protections, if you don't ask for this protection from the court, you don't get it! This is one of the biggest dangers of trying to take an estate through probate without an attorney.
If you have inherited real property in Florida and would like to discuss your situation as well as our fees for your case, please e-mail us, email@example.com or call toll free, 866-465-8046, or locally within Citrus County, 726-5444, with the specifics and we will discuss your options in greater detail.
VACANT LAND OR NON-HOMESTEAD RESIDENTIAL PROPERTY
Here's a hypothetical and fairly common example of a simple Florida probate court proceeding involving vacant land.
Mr. and Mrs. Smith, residents of New Jersey, owned a piece of land in Florida in both of their names that they purchased 20 years ago. Mr. Smith died in 1989 and his will was probated in New Jersey. Mrs. Smith, his surviving spouse, became the sole owner of the Florida land by operation of law because in Florida a husband and wife listed as joint owners on real property are considered to be tenants by the entirety, (unless the deed specifically states otherwise), which automatically vests title in the surviving spouse's name.
Mrs. Smith subsequently died in 2001 and her will was also probated in New Jersey. At the time the Smith's two children, both residents of California, did not open a probate Florida probate court proceeding as they were uncertain what they wanted to do with the Florida property and did not want to incur additional attorney fees and costs.
Several years pass, the children continue to pay the property taxes and in the current year, one of the children receives an inquiry from an interested party in Florida who would like to buy the land.
The problem is that while entitled to the property by their mother's will, and vested in the right to ownership, the children don't technically own the land. They have no authority to sell the property outright because it was never legally transferred to them in Florida through the Florida probate courts.
Provided the children are in agreement, this would typically be a straightforward ancillary summary probate or admission of foreign will to record proceeding.
We would obtain certified copies of the parents death certificates as well as certified copies of certain probate court documents from the probate that occurred in New Jersey for the mother (since she would be the sole owner listed on the property by operation of law). We would then prepare court pleadings for the children to sign to open the appropriate proceeding in the court in the Florida county where the land is physically located.
If you have inherited a primary residence in Florida and would like to discuss your situation as well as our fees for your case, please e-mail us, firstname.lastname@example.org or complete the request for a free, flat-fee quote and provide the specifics of your situation so we can discuss your options in greater detail.
A NOTE REGARDING FORECLOSURE
While My Florida Probate does not provide legal advice with regards to foreclosure or real property transactions, we do recommend that heirs be aware of the seriousness of potential foreclosure, and that they may need at some point to consult with an attorney specializing in foreclosure either before or during the probate process.
If you have inherited real property in Florida that you believe may be on danger of foreclosure or have been notified that the property is in foreclosure, and would like to discuss your situation, please e-mail us, email@example.com or complete the request for a free flat-fee quote and provide the specifics of your situation so we can discuss your options in greater detail.
*If you are an heir to real property and are interested in selling it, one of best ways to determine the necessary steps is to contact a Florida title insurance company. While probate is used to obtain title to real property, the reality is that title companies provide the coverage to insure the conveyance of a clear title by the seller(s), and it is their insurance underwriters who will determine what it will take on a seller's part to obtain this coverage. An additional benefit is that multiple heirs will have an objective assessment of what will be required to close a sale. Obtaining title by probate may be the first step in selling real property, but understanding all requirements at the outset can help speed the sale process and avoid unnecessary delays and frustration.