Q: Prenup specifies no spousal claim to solely owned property (homestead). Will specifies who gets home. Probate needed?
I am the executor and the named recipient of the home in the will of the husband. The parties involved are married but have not resided together nor communicated since the wife moved out of state over 10 years ago. His house is specifically listed in the prenup as an asset from prior to the marriage and that no claim can be made on it upon his death. It is paid off, there are no other debts, the bank accounts and other assets have beneficiaries and/or are jointly owned with others (not the wife) so no probate is needed for those. Just the house is the issue - is probate needed in this situation?
A: You will need to review the current deed of the property to see precisely how the property is held, this will be your starting point. It is likely that some version of probate may be required and a petition to determine homestead status of real property as well. The prenuptial agreement will also have to be produced in order to review it. An issue that may arise is and could be related to spousal rights and spousal share claims, so I hope the prenuptial agreement is properly drafted and valid. If there is a surviving spouse she has rights no matter what various other documents may say related to pay on death, transfer on death or related to a Will even, again, hopefully the prenuptial is rock solid as issues can and will possibly arise and rear themselves. Your starting point, the deed for the property and prenuptial review, also, Will needs to be copied and submitted tot he clerk of the court in the county where person had their Homestead. There is a lot going on here possibly that may need to be addressed. If that deed for the Homestead says "married man or tenants by entirety or similar", there could be issues that need to be addressed.
A: If the property is one in the deceased spouse's name, then just having a Will does not avoid probate. A probate proceeding will be required and the prenuptial agreement will be attached as an exhibit to the court petition to open the estate in addition to the Will itself being put on deposit with the clerk and then admitted to probate by court order. Once the petition and the prenup establishes that the homestead property is subject to devise (that it can be given to someone other than the spouse), then the judge will sign a homestead order which will transfer the property out of the estate and to whomever is named in the will. If there are no other assets in the estate other than the homestead, it is likely that the estate will be qualified for a summary administration, which is a simpler estate proceeding. Our office handles summary estates anywhere in Florida for a flat fee. You are welcome to call our office for a free phone consultation and a quote.
A: You will still need to obtain a determination from the court that the residence was the decedent's homestead, and exempt from creditors, at their death. The prenup will be utilized to evidence that spouse waived her interest in the homestead and why it should pass to those designated under the Will.
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