Authored By: Elizabeth J. Barber, Esq. ebarber@dunlapmoran.com
Generally, Florida probate is required when someone passes away owning assets in their sole name. When it comes to Florida real estate, it is common for many people to list a property for sale, find a buyer and only then to discover that the death of an owner of the property prevents them from closing the deal until a Florida probate is conducted. Naturally, this strikes fear and trepidation into the hearts of all parties concerned – sellers, buyers and brokers! Don’t despair – we are here to help…
If you are in the real estate business think twice before leaping into a listing agreement on a property in which one or more of the owners of record are deceased. Don’t take the family’s word for it that they have the authority to sell it. The better route to take is to ask one of our firm probate attorneys to take a quick look at the situation to allow us to give you a recommendation on how best to proceed under your scenario.
To help sort it out, family members of the deceased should gather the decedent’s Last Will (if there is one), the certified Death Certificate and copies of any out-of-state probate proceedings, and/or the name and contact information of the attorney handling such out-of-state matters. This will help facilitate a much faster review of the matter so that your listing and sale might be able to occur with the expediency that most sellers and buyers in our area have come to expect.
Florida Statutes provide two forms of probate that are commonly utilized in these situations. The shorter form of probate, or Summary Administration, can be used when the value of the estate assets is less than $75,000 in total, or when the decedent has been deceased for over two (2) years. When a family is trying to sell mom and dad’s Florida property, this two-year period is measured from the date of death of the second of mom or dad to die. If your circumstances fit into this category, Summary Administration can usually be conducted at less cost to the family and in a relatively short amount of time. The proviso here is that all family members must be organized and must cooperate with one another in order to make this procedure happen with the efficiency and speed desired in real estate sales.
The second form of probate, or Formal Administration, is more commonly required. Most properties in our area are over the $75,000.00 mark and most families try to sell their parent’s properties far sooner than the two (2) year mark following death, as everyone would naturally like to receive the bequest that has been left to them without such a long wait. Formal Administration is the full version of probate and requires that someone be appointed by our local court as the Personal Representative. No one has the authority to list or sell real estate falling into the Formal Administration category until a Personal Representative has been given circuit court authority to act for the estate. Formal Administration also requires legal notice to creditors giving them three months to file any claims for reimbursement from the estate for unpaid bills or debts of the decedent, even with decedents who have left no known debts or un-paid bills behind.
The good news though for property sellers is that once a person is appointed by our local court as the Personal Representative, the property can be sold during formal probate. However, if the closing occurs prior to the end of the three-month creditor period, the net proceeds of the sale of the property must be held in escrow until the three months pass and until all legitimate claims are paid. Once these steps have been accomplished, the Personal Representative can then provide an accounting of the funds remaining after expenses and distribute the balance of estate funds to the beneficiaries.
So, for all real estate professionals, our best advice is to quiz the families of deceased owners of Florida real property carefully. Ask them for a copy of the Will and Death Certificate, and then contact one of our firm’s probate attorneys so that we can take a look at your particular situation. Such questions may feel intrusive, but they are legitimate and necessary and will be without a doubt asked by the closing agent during the transaction. Best to get the ball rolling on acquiring the facts and information necessary to ensure the probate is handled efficiently and competently. We are more than happy to let you know what our recommendation might be to help facilitate a prompt closing of your deal!
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