In Florida, a common probate scenario occurs when out-of-state 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 Florida 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.
A NOTE REGARDING PROBATE AND REAL ESTATE SALES CONTRACTS :
Given Florida's rapid growth during the last several years, My Florida Probate has worked with a number of individuals and companies seeking to close real estate transactions that require probate. One important factor that is often overlooked is the length of time a probate may take and the impact this could have on an existing real estate sales contract.
While My Florida Probate does not provide legal advice with regards to real property sales transactions, we do recommend that all parties be aware of the potential need to amend their sales contract due to the time constraints a probate may place on it and suggest they seek appropriate legal counsel if necessary.
VACANT LAND OR NON-HOMESTEAD RESIDENTIAL PROPERTY:
Here's a hypothetical and fairly common example of a simple probate proceeding involving vacant land (see below for a discussion on homestead property):
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 proceeding in Florida 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 and in the current, 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, the children don't technically own the land. They have no authority to sign documents to sell the property because it was never legally transferred to them in Florida.
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 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.
HOMESTEAD EXEMPTION
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 protects some or all of the property from being sold to satisfy most of the decedent's creditors' claims (other than certain debts such as mortgage or construction liens or valid 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 special petition in order to preserve the homestead protection.
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, dawn@myfloridaprobate.com or call toll free, 866-465-8046, or locally wtihin Citrus County, 726-5444, with the specifics and we will discuss your options in greater detail.
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*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 unecessary delays and frustration.
