Florida Probate Question of the Day

I recently talked to a prosepective client about homestead laws in Florida.  Specifically:

What happens to a decedent’s homestead in a Florida probate administration that has many or substantial creditors?

I told him that I could secure a Homestead Protection Order so that his mother’s house would pass safely without worrying about the claims of creditors.

Recently, he contacted me for clarification:

I want to make sure I understand that (homestead) classification correctly. I currently do not reside (nor plan to) in my mother’s house, and I was concerned that a legal minor must be residing post-death in order to remain a homestead exemption.  Can you clarify that distinction for me when you get a chance?

Answer:

Constitutional homestead protection is granted to the decedent’s estate and accordingly the heirs of the estate.

If your mother was on the title to the house and it was her principal residence at death, it (the house) enjoys that protection and can be passed on to you and the other heirs free and clear of debt other than debt secured by the house (mortgages, mechanic’s liens etc.) In other words, pay the mortgage or lose the house.

Note also that if you chose to sell the homestead property, the funds received from the sale are also protected!

Credit card debt or medical debt on the other hand, has no effect on the homestead.

The only other caveat would be a Federal IRS lien or liability.  (The IRS can take just about anything)

The fact that you do not intend to move there has no bearing on your right to claim a homestead protection order.

Regarding minors:  Florida Homestead laws forbid a person to dispose of their home to a third party by Last Will and Testament (or any other testamentary document), if that person had minor children at death.

99.99% of the time, the answer is yes.

Generally speaking, a personal representative must have attorney representation before the probate courts in Florida.

“But it’s a simple estate! Just a house and a checking account!”

Sorry, that’s not the criteria for a “simple estate” and it certainly
doesn’t lay the groundwork for rules requiring representation.

Here’s the primary rule:

Every guardian and every personal representative, unless the personal representative remains the sole interested
person, shall be represented by an attorney admitted to practice in Florida.

I know what some of you are thinking…

“Well, I am the sole beneficiary, so I must be able to represent myself.”

You may very well be the sole beneficiary but you are probably not the sole interested person. Interested persons may
include all sorts of people or entities, but the primary concern here are creditors.

“Well, we paid off all the credit cards, so we’re good right?”

Did you pay off Medicaid? Medicaid is a “class 3″ creditor which basically means they are up there on the list of people who
must be paid before any beneficiary takes their share of the estate. Medicaid must be notified if the decedent was 55 or older.

I could go on and on, but here’s the bigger picture:

We have taken no less than 20+ cases in the last year for clients who tried to start Summary Administration themselves. They had
convinced themselves it was easy enough to do that it was “just a few forms.” Of course until they had to provide the
appropriate proposed orders to the judge. Others didn’t know that there was a “proof of will” process required. Still
others didnt’ realize that the court clerks don’t give legal advice.

If a court clerk overlooks the fact that you dont’ have an undersigning attorney on your paperwork, you might get your foot in the
door. But the consequences of starting a process you’re not sure how to finish can be brutal – and the clerks won’t help you one
bit. Don’t blame them – they aren’t allowed to give advice.

And if the estate is NOT eligible for Summary Administration, don’t even think about going it alone. You won’t even get
past the clerks in Formal Administration.

One last thing to note: Petitioners, Executors and Personal Representatives are held personally liable
for their actions during the administration of probate. This is not an arena you want to dabble in simply because you’ve found a few
forms online.

You certainly don’t have to hire us, but please…hire an attorney to get it done right from the start.

Still not convinced? Have a look at the Florida Probate Rules.

Florida Probate Rules

Here’s a quick list of questions we entertain quite often.

(60 seconds is a stretch unless you read fast!)

10. What is probate anyways?

The court process of paying off debts and distributing assets to a decedent’s heirs.

9. My husband just died. Do I need to probate the house?

If it was your homestead and you were on the deed, then no. If you weren’t on the deed, yes. There are potentially a half dozen answers to this question – contact us!

8. Isn’t probate in Florida just like any other state? Aren’t there just a few forms to fill out?

That was 2 questions. Yes and No – it’s not ever that easy. Anyone who tells you otherwise won’t be there when something goes wrong.

7. Do I really need an attorney?

If you’re the personal representative (executor), then yes.

6. I took care of mom in her last year. Can I get reimbursed?

Maybe. But I’m sure mom didn’t charge you for childcare when you turned 18!

5. I have 3 siblings. Dad told me he wanted me to have the house. There’s no will though.

If there’s no will, he probably didn’t want you to have it that badly! (just joshin’)

4. Is a copy of the Will good enough?

Typically, no.

3. How do I contest a Will?

You call a Florida probate litigator. We don’t do Will contests.

2. How long does probate in Florida take?

Depends on the size of the estate, the number of creditors and the efficiency of the probate court.

1. How much do you charge for probate?

How much do you have? Just kidding – see our sample Florida probate fees schedule.

For Sellers:

If you just inherited property in Florida and you’re looking to sell it, make sure your ducks are all in a row. You can’t sell the property you don’t legally own!

We frequently get calls from real estate agents wanting to know how long probate in Florida will take. The answer is invariably, “it depends.” Don’t assume your realtor knows anything about probate. Realtors know plenty about real estate, but many of them don’t understand probate. Technically, a real estate listing agreement probably isn’t even binding until you have actually inherited the property through probate administration.

If the property will go through a formal real estate closing and title insurance will be issued, probate is undoubtedly going to be required by the title company! This can be a deal breaker for a potential buyer if it is not addressed early!

On the other hand, if you plan on signing over a quit claim deed, the buyer will eventually discover the probate problems – a headache you do not want to deal with long after you’ve “closed” the deal.

For Buyers:

If you suspect that the seller is liquidating an estate, ALWAYS inquire if the property is in probate administration or if it has been through probate! If the answer is “yes” it should be quite simple to confirm in the county clerk’s official records.

Furthermore, unless the seller is a surviving spouse, it is typically not enough to simply record a death certificate to “clear” title to the property!

Lately, it’s been for clients who are trying to refinance on the house mom or dad left to them.

Once you “lock in” that interest rate, you’ve got X number of days to close the loan, correct? Well, if the real estate attorney, title insurance agent or title company gets to it soon enough, you might find that you need to probate the house first!

Important things to know:

1. Before you go to refinance or even sell, get the probate out of the way.
2. Probate judges don’t expedite probate cases just because you’re trying to get that 4.9% interest deal of the century. Nope, doesn’t matter how bad you really need the money.
3. Probate in Florida, even summary administration, can take a month or two. In complicated cases, maybe even 6 months!
4. Even if you’re just probating mom’s house, it’s not necessarily simple. Don’t assume it’s simple.
5. Get organized. Collect the death certificates, Wills, last recorded deeds and make sure all the beneficiaries are on board.
6. If there’s no Will, ALL of the beneficiaries need to be accounted for. Yes, all of them.
7. If you’re trying to sell the property, make sure you’ve got probate in order before you sign any purchase/sales agreements. If you’re refinancing, make sure your mortgage broker or banker knows you may have to probate the property.

Just a few good tips to get your ducks in a row. PROBATE COMES FIRST!

“Quick” Question:

“My dad who ironically was an attorney, died and we can’t find his Will. We have no reason to believe that he wrote a Will other than the fact that he was an attorney and we find it hard to believe he didn’t prepare one. I, my biological sister and my adopted brother are the only beneficiaries. We’ve turned the house upside down and we just can’t find it! What happens in Florida probate if we can’t find the Will?”

“Quick” Answer:

For some reason, I’m hearing more of these stories about attorneys who didn’t leave Wills. It is strange, but not uncommon. First, check out my other post with tips for finding the will. Failing that, here’s the quick answer:

If the Will can’t be found, the decedent is presumed to have died “intestate” which means “without a Will.” It happens all the time and is not a problem so long as the the intestate heirs (heirs of the decedent pursuant to Florida Statutes) don’t quarrel over the statutory distribution of the estate and no one else tries to “prove” up what they believe to be the Last Will and Testament.

One of the other major disadvantages of not having the Will is that a judge may decide to require the petitioner or personal representative to post bond before administering the estate (bond – probate administration insurance).

Other inherent disadvantages include distributions to persons who are currently receiving government benefits such as Social Security disability. A lump sum distribution to such a person might disrupt their benefits to their dismay without a proper Will (or Trust.)

“Quick” Question

“My mom owned a parcel of land in Lee County but was a resident of New Mexico. She died last May and we’re done with probate there. Can I just file the death certificate and deed it to me and my sister? Or do I have to go through probate in Florida as well?”

“Quick” Answer

Yes, you’ll need probate and depending on the circumstances, the estate might qualify for summary probate administration (short form probate) or more specifically, ancillary summary administration.

Probate is the process of administering a decedent’s estate. Even if the decedent resided and died in another state (the home state), that decedent also left an estate in Florida if he or she owned real property/real estate in Florida.

Essentially, because your mom owned property in Florida, she left an estate in Florida notwithstanding the fact that she called New Mexico home. So you’ll have to go through a probate administration in Florida in order to pass title of the Lee County real estate to you and your sister. Again, you might be able to take advantage of the shorter summary administration.

If you have a general probate question you’d like answered in our “Quick” Q&A feature column, send us an email to help[at]weprobateflorida.com. If you have an actual probate case and you’d like a Free Case Review by phone, fill out our quick contact form!

Timeshare interests are similar to any other real estate interest with regard to the purchase and sale formalities. A timeshare has a legal description and is/was transferred by deed. It is indeed an interest in real estate and not personal property as one might think.

Should you go through probate to inherit a timeshare?

Well, the real question is whether or not you intend to use the timeshare or sell it at a reasonable profit. If you stand to receive very little benefit from the timeshare and it’s the only real asset of the estate, it might not be worth it.

Here are a few points to consider:

1. Timeshares, generally speaking, are VERY hard to sell unless they are the cream of the crop.
2. As with any other probate case, despite what a Last Will might say, you do not own it until you go through probate.
3. If the timeshare management company asks you to simply quit claim deed the interest back to them (and be relieved of the costs), you should know that you cannot deed any interest that you do not yet own (see #2).
4. Furthermore, you have NO obligation to deal with the timeshare. Yes, you will lose it, but no, you don’t have to continue to pay the maintenance fees if you don’t want to deal with it.
5. Timeshares may make a comeback, but that’s purely speculation. If you think you’ll use it, then it’s probably worth the cost of going through probate. If not, don’t even bother with it.

Attorneys bill for “attorneys’ fees” and “costs.” Attorney’s fees are the professional service rendered. Generally, the options for fee structure include: hourly fees, flat fees or contingent fees. Costs (or expenses) are the costs associated with the administration of the probate case, i.e. postage, court filing costs/fees, etc.

The ultimate “cost” of probate in Florida ultimately depends on the complexity and conditions of the probate case. Summary Administration of an estate is typically less expensive to administer than formal administration.

The sample fees that we display are for certain case scenarios and are not representative of every probate matter that we encounter.

The actual costs, or expenses or probate include:

• Court filing fees
• Recording costs
• Publishing Notice to Creditors
• Express courier or mail service (Fedex, DHL, USPS)
• Certified copies of records
• Genealogical Fees

Again, not every cost is required for every type of probate administration. We continually strive to keep costs as low as possible for our clients without sacrificing the efficiency of the process.

Click here to view our sample Florida Probate fee schedule.

If yes, then the estate is eligible for Summary Administration in the Florida probate system, even if the value of the homestead is more than $75,000.