It’s never easy to deal with the probate of a parents’ estate after they pass away. And that’s even more true when it comes to the house your parents lived in–and perhaps that you once resided in too. But once the strong emotions subside a bit, most people realize that holding onto a home where no one now lives does not make financial sense.
At this point you’ll want to go through the legal process that will allow you (along with any other heirs) to legally sell the property.
People sometimes think if they are named as beneficiaries in their parent’s will they will be able to automatically sell their home. But unless you are a co-owner of the property, and listed on the deed in a specific manner, that is not the case.
Instead, the home, along with other assets, needs to go through the process of probate according to the laws in Florida. This involves working with an experienced probate attorney, who will begin by filing the necessary paperwork with the court. A probate judge then appoints the person named in the will as the personal representative (PR), who is put in charge of handling the estate. Once appointed, the PR can start the process of engaging a Realtor and selling your parents’ home.
The Law Office of Gary M. Landau, P.A., has more than two decades of experience with Florida’s probate process. The firm probates estates in every county in Florida. If you are in need of a probate attorney or want more information about the process, call us at (954) 979-6566 or fill out our online form to schedule a free consultation.
Why Your Parents’ Home Generally Must Go Through Probate
If the deed of the home is in the name of both your parents or of your last surviving parent, it will likely need to go through the probate process in Florida.
This is not the case in a few situations. These include:
- The home was properly placed in a trust during your parents’ lifetime, and the named successor trustee is still alive.
- The deed for the home is not only in your parent(s)’s name but includes you or another heir, and the deed exactly states that there is “joint tenancy with rights of survivorship.” In that case the “survivor” of the joint owners (e.g., you) automatically owns 100% of the property as soon as the other joint owner (or owners) passed away.
Why Primary Homes Are Treated Differently from Other Assets in Florida
The home that your parents lived in was most likely considered by the property appraiser’s office as being “homestead property.” This is a legal taxation designation in the state of Florida that applies to a person’s primary residence.
Homestead property is treated somewhat differently from other assets a person has left to their heirs. For example, the law requires that all heirs, not only the personal representative, must sign the deed that transfers the home at the time of its sale. (The PR can transfer all other assets without the involvement of the other heirs, although of course those heirs receive whatever share of the estate they are left in the will.)
Once the PR is appointed and the home eventually sold, the probate attorney who handled the real estate closing will properly distribute all assets, under the guidance and consent of the probate court.
Types of Probate in Florida and What They Mean for Real Estate Inheritance
Many people wonder how long it takes for the probate process in Florida. And the answer is, it depends–although it generally moves fairly quickly.
Specifically, the length of probate hinges on the size and complexity of the decedent’s estate and the type of probate required because of these factors.
Formal Probate Administration
Most estates in Florida go through formal administration. This process involves inventorying and valuing a decedent’s assets, notifying potential creditors of the decedent’s passing, paying off outstanding debts and taxes, and, with the supervision of the court, distributing assets to all beneficiaries.
When a home is part of the probate estate, the judge initially grants the beneficiaries status as the new owners, after which they are able to sell the property. (Or rent it out, or keep it for their own personal use.)
Typically, formal administration takes anywhere from 6 to 9 months to complete. However, the home can be put on the market (even if proceeds cannot be distributed to heirs) during this time.
Per Florida statutes, an estate can undergo summary administration (a simplified probate process) if the estate is worth under $75,000 or if the decedent died more than two years earlier.
Since the final deadline for creditors’ claims in Florida is two years after the decedent’s passing, summary administration doesn’t need to consider creditors claims, and for this reason and others it is a speedier process.
Maintaining the Home During the Probate Process
When a house is involved with a probate, it is important that the heirs protect the asset to prevent it from being damaged or foreclosed during the probate process.
- Continuing to pay monthly maintenance, taxes, mortgage, insurance, electricity, and other fees involved regarding the home.
- Continuing to maintain the lawn and exterior of the home.
- Ensuring the home is secured so squatters don’t decide to take up residence.
- Asking a neighbor or other area resident to keep an eye on the property.
It is crucial that the personal representative for the estate continue to make monthly mortgage payments. Failure to keep up with the mortgage payments may result in foreclosure.
Inheriting a Heavily Mortgaged Home
During the probate process, some people discover that their parents had a mortgage on their property. This may be the case even when they lived in the home for a long time, because they may have refinanced or taken a home equity line (aka a second mortgage) at some point.
In some cases, when a property is so heavily mortgaged and the potential sales price is low, it may not pay to keep making mortgage payments that would protect the heirs’ future ownership of the home, because it is not a home they can sell at a profit.
In these cases, the probate attorney can negotiate with the mortgage holder to get them to foreclose on the property. This absolves the heirs of the need to make future payments. Under Florida law, the lender cannot claim a person’s personal funds if they forego paying a mortgage on inherited property. They simply lose the property to the lender.
Do I Need to Look for a Probate Lawyer in My Area?
Probate in Florida almost always requires a lawyer. An experienced FL probate lawyer:
- Helps the personal representative get appointed
- Assists with the legal paperwork that leads to the settlement of the decedent’s affairs
- Works to resolve debtor claims
- Efficiently takes care of all probate court requirements, thereby speeding up the process
- Resolves conflicts between beneficiaries or between beneficiaries and the PR or beneficiaries and others not named in the will.
Working with an experienced probate attorney can save you time, hassle, and money. If you are the heir to an estate, it is important that you contact a reputable, local probate lawyer as soon as possible.
The Law Office of Gary M. Landau, P.A.: Probate Attorney in Broward County, FL
The probate process in Florida can be long and complex. Attorney Gary M. Landau and the rest of our legal team guide clients in Coral Springs, FL, across Broward County, Palm Beach County, and every county in the state of Florida through the process.
With more than 25 years of experience and countless satisfied clients, Gary M. Landau and his team are uniquely positioned to help you with your probate and real estate needs in South Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you are purchasing a home, have inherited a home, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the Law Office of Gary M. Landau is ready to work with you.
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.