Asked in Probate for Florida

Q: Can a home of a deceased without a will be sold without probate?

Would the home need to go through probate before selling? Florida Statute 731-1055

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3 Lawyer Answers
Phillip William Gunthert
Phillip William Gunthert
Answered
  • Probate Lawyer
  • Orlando, FL
  • Licensed in Florida

A: Maybe, probably not. You will need to speak with a Florida Probate Attorney. It will depend on what the deed says and how the property is titled and if it can transfer based upon how the deed is presently held. For example, is it held by a husband and wife (Florida Tenancy By The Entirety), then it can likely pass outside of probate or if the deed is held in some manner that allows transfer upon death. So, a starting point will be getting a copy of the deed or having a probate attorney get and review the deed. Even if the property can pass without probate, there may be other property and assets that must go through probate in order to be passed to the beneficiaries and confirm that creditors have been paid off and or addressed and notified. If there is no will, then Florida Intestate Statutes (without a will) are going to be applicable. Also, was the property homestead, is there a surviving spouse, are there any surviving children as there are special protections that potentially come into play and are applicable and or may be used as it applies to probate. The type of probate that will be required will also depend on the type of assets and the overall value of assets that must be probated. So, it likely depends on additional information and details you will have to provide whether or not the property will have to go through probate before it can be put on the market to be sold. Your starting point will be to provide additional details and speak with a probate attorney. Keep in mind, any asset that is in the deceased person's name alone, without some at death transfer designation (Pay on Death, Transfer on Death, Deed transfer or otherwise titled as joint ownership that passes at death) will likely have to be probated.

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

A: If the property is in the deceased person's sole name, then an estate would need to be opened to transfer the property to the heirs. There are other types of deeds (life estate with remainder person, joint tenants with rights of survivorship, husband and wife) that would only require the recording of a short form death certificate to acknowledge the transfer of ownership to the surviving spouse, joint tenant, or spouse.

If you have any doubt about how the property is titled, or if it is clearly in the deceased person's sole name, then you should consult with a probate attorney to review the deed and any other potential probate assets and receive some advice on what is involved to open an estate. If the property is homestead property and there are no other assets (or other assets less than $75,000) and no creditors (or creditors but the only asset is an exempt asset, i.e. the homestead), then the estate would qualify for summary administration. This is a quicker and less costly estate proceeding.

Having a will does not avoid probate. Having a will just says who receives a deceased person's assets and who is appointed the personal representative. With or without a will, when there are assets in a deceased person's individual name with no payable on death beneficiaries or no joint owner, then probate proceeding is required to transfer the assets.

Our office handles probate matters anywhere in Florida, You are welcome to call us for a free phone consultation to discuss your case. We handle summary administration for a flat fee including filing fee and other costs.

C. Randolph Coleman
C. Randolph Coleman
Answered
  • Probate Lawyer
  • Jacksonville, FL
  • Licensed in Florida

A: If the home was titled in the name of the decedent, ownership of the property may have passed to the decedent's surviving spouse, or to his heirs at law, depending on whether the home was his homestead, i.e., his primary residence at the time of his death. The Florida Constitution has a number of provisions regarding what happens with homestead property at the death of the owner.

Usually, it is necessary to have a probate proceeding to have a court determination of whether the property constituted homestead under Florida law. If it was homestead, and therefore exempt from the claims of creditors, other than consensual liens on the home, the home legally passed to the intestacy heirs at the time of the decedent's death. But, it will be difficult, if not impossible, for a further transfer of the home until two years after the death of the decedent, unless there is a probate proceeding to determine that it is homestead, and free of all creditor claims other than mortgages.

The first step is to consult with an experienced probate lawyer to determine whether it was homestead, and then to determine who the intestacy heirs are in his particular situation, and then, the third step is to determine whether the rightful owners are going to try to sell the property immediately. The answers to those questions, with appropriate guidance from an experienced probate attorney will help you do things according to Florida law.

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