I. DEFINITION OF PROBATE
In the context of real estate, when real property terminates in the name of a deceased owner in the State of Florida, it must undergo Probate. The probate court process allows for:
the sale of a decedent's real estate property to a prospective buyer, or
the transfer or release of real estate to a decedent’s heirs.
II. THE PROBATE PROCESS
Under The Florida Probate Code (Chapters 731 through 735), there are several types of probate administration. The following are three of the most common types:
1. Formal administration is Florida’s traditional form of probate. It starts with a petition to open the estate and appoint a Personal Representative (a/k/a as an “executor” or “administrator”). A personal representative may be a person, bank or trust company. A judge appoints a Personal Representative to be in charge of the administration of the decedent’s probate estate. It is not enough for a personal representative to be nominated in a Will. Formal administration applies:
If the decedent’s estate exceeds $75,000 (not including homestead property); or,
If decedent's will specifically orders formal probate.
The minimum time to complete the formal administration process is five months; the maximum amount of time may take years.
2. Summary administration is a shortened form of the Florida probate process and does not require a personal representative. It is less costly and time-consuming than a Formal Administration and applies:
If the probate estate's value is under $75,000 (not including homestead property); or,
If the decedent's death occurred more than two years ago and the will does not direct formal administration. (Note: A Summary administration is unavailable if decedent’s valid will specifically orders a formal probate.)
From start-to-finish, the summary administration process can take anywhere from six weeks in some counties to four months.
3. Ancillary administration applies when the decedent is not a resident of Florida but owned real property in Florida.
The probate proceeding from the decedent’s state of residency must be in progress or completed first, then a probate is opened in Florida.
A judge may appoint an ancillary personal representative. If so, the procedure is similar to Formal Administration.
Ancillary administration must be opened in the county in which the property is located.
III. BEST SOURCES OF PROBATE REAL ESTATE
LEADS IN FLORIDA
The following is a list of possible ways to locate properties undergoing the probate process:
1. County Clerk’s Office. If a Last Will and Testament has been filed for probate, then you should be able to obtain a copy of the probate court documents from the county clerk’s office where a deceased person lived or where the decedent owned real estate.
You may go to the probate court in person and ask for their assistance. While most courts charge a fee to view their documents, you should be able to access a list of the probate court records online, free of charge. The docket will list the documents that have been filed in the probate case along with the executor’s name, the executor’s attorney, the list of beneficiaries, and creditors.
2. Contact the executor’s attorney. An executor’s job is to help grieving heirs settle the estate as quickly as possible. Often, the heirs live out-of-state and have no desire to keep the property. As a result, executors are often under pressure to sell the property under market value because the property is still incurring monthly mortgage payments, taxes, HOA dues, and other related upkeep costs, or the property is in disrepair. Therefore, it’s in an investor’s best interest to contact the executor’s attorney early in the probate process.
3. Contact an estate planning or probate attorney. If you’re an out-of-state real estate investor, instead of incurring expenses to travel to a court in person, consider establishing a relationship with a local estate planning or probate attorney. Since this group of attorneys prepares wills and trusts, as well as handle probate and trust administration, they’re in the best position to connect clients and estates to real estate professionals.
4. Search Public and Legal Notices in Newspapers. You can find a list of probates listed in local newspapers. You may also find some listed in newspapers with online databases of public and legal notices published throughout the state of Florida (e.g., http://floridapublicnotices.com/).
IV. REAL PROPERTY NOT SUBJECT TO PROBATE
Probate is unnecessary to transfer title to property under the following conditions:
a. if the property was held as husband and wife (tenancy by the entireties) at the time of decedent’s death.
b. if the decedent held the property along with one or more other persons as joint tenants with a right of survivorship.
c. if the decedent owned a life estate interest in the property with a remainder interest transferable to another.
d. if the decedent’s ownership of the property is in a trust.
We hope this resource was helpful and informative. Visit our YouTube channel for more Real Estate Must Know. However, if you need immediate help with the purchase and sale of probate real estate, or need to resolve any investment property issues, please feel free to contact Attorney Kimberly Soto for a free 15-minute consultation at 321-972-2279.