The grief process looks different for everyone, but no one wants to deal with the complicated legal or real estate process while they’re also dealing with the death of a loved one. It may be impossible to prepare for the complex and challenging emotions you’ll face but knowing what to expect from the probate process is possible. Giving special consideration to how real property is transferred during probate is also important anytime that a loved one leaves real estate as part of their estate.
What is Probate?
When someone passes away, their estate will often have to undergo the probate process before assets can be distributed to the heirs. This is a court process that involves, among other things, identifying the assets and debts of the estate, validating the will, naming an executor (or personal representative) to the estate, paying off any required creditor claims, and distributing the assets to the heirs.
A will often provides a clear blueprint for how an individual wants their assets to be distributed upon their death. Without such a document, estate administration can become much more complicated. If the person who passed, known as the decedent, dies without a will (or if their will is determined to be invalid), this is called an intestate estate. In these situations, it will fall to Florida intestate succession laws to determine how the estate will be distributed. The probate judge will also appoint someone to fill the role of executor or personal representative of the estate. The Florida statutes set forth the order of preference for who is to be appointed the personal representative.
How to Sell or Transfer Title to Real Estate During the Probate Process
Probate, while often complicated and stressful, provides a sometimes-necessary route for property to pass from one person to another after death. If the decedent names a beneficiary for their real property in their will, then that person will likely be able to receive that property after the probate estate administration has concluded. However, there are also ways to transfer title during the probate process.
For a formal administration, if the beneficiaries wish to sell the property before the probate is completed, they can often do so via a court order authorizing sale. A court order may not even be necessary if the decedent’s will contains a “power of sale” clause that authorizes the personal representative of the estate to sell real property without receiving probate court approval. However, some Florida courts (e.g., Miami-Dade and Broward counties) require a personal representative to obtain court approval before the sale of any real estate can take place.
For a summary probate administration, which is the shortened form of probate in Florida, the real property transfer is completed upon the judge signing an Order Determining Homestead (if the property was the deceased’s primary residence), or an Order for Summary Administration (if the property was not the deceased’s primary residence). Summary administration takes approximately 1 to 3 months to complete so any sale of real property takes place upon the completion of the probate process.
Ways to Retitle Assets to Avoid Probate
While an individual is still living, there are other ways to transfer real estate from one person to another to avoid probate altogether. Property transferred to a living trust avoids probate, which makes this option highly desirable for many Floridians. Trusts provide an easier way to provide for heirs and beneficiaries and avoid the hassle of Florida probate. Another popular option in Florida is a “Lady Bird” Deed (also known as an Enhanced Life Estate Deed). Lady Bird Deeds have many benefits and are often used in Florida to avoid probate.
Another scenario in which real estate can change ownership after death without going through probate is through a right of survivorship deed. Real property that is jointly owned with someone who can claim the right of survivorship avoids probate. The deed must have proper survivorship language to be effective.
How Farshchian Law Can Help With Your Probate and Real Estate Needs
While probate can be a complicated process in itself, the transfer or sale of real estate during probate also has several nuances that must be properly addressed. Our experienced real estate and probate attorneys can help you through the process to ensure that the transfer or sale of your loved one’s property is effectively handled. We can also discuss the various ways to avoid probate and see which method best fit your needs. Contact us to schedule a free consultation by calling (305) 901-5628 or (239) 935-8599, or email us at Info@JFRealEstateLaw.com.