Sanford, FL asked in Real Estate Law and Probate for Florida

Q: Question about a property after one of the spouses has died.

In Florida, there is a man and women were married but she never took his name. The purchased an income property and 10 years later he passed away. She would now like to sell the property but the title company says she can't because there was no designation such as married or tenancies of the entirety noted on the deed, just their names. Two notes were taken in the same names. There is a will which clearly states that if she survives him all of the assets of the estate are to go to her and not to his three children from previous marriages. Should the title insurance policy be able to correct this mistake and allow the sale? Does the estate have to go into probate to clear this up? What suggestions can you give to help this move forward?

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2 Lawyer Answers
Mr. Long H. Duong
Mr. Long H. Duong
Answered
  • Probate Lawyer
  • Gainesville, FL
  • Licensed in Florida

A: Based strictly on the facts you’ve provided, probate will probably be necessary because of the lack of marital designation on the deed.

The Will should control but it must be admitted to probate before it becomes effective. I strongly recommend you contact a probate attorney.

Lauren Nagel Richardson
Lauren Nagel Richardson
PREMIUM
Answered
  • Probate Lawyer
  • Gainesville, FL
  • Licensed in Florida

A: If both spouses had their name on the deed, but it just did not say husband and wife after their names, and they were married when they purchased the property and were married all the way up until the date of death of the husband, then all you need to do is have a real estate attorney prepare an affidavit of continuous marriage, then record it together with the death certificate in the public records. If both names are not on the deed, then the affidavit will not be sufficient. You would need to open an estate, probate the will, and get a homestead order transferring the property to the wife.

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