Understanding the process by which real property is passed along to heirs, can give peace of mind to parents who are concerned about leaving a legal tangle for their children. In this case, as discussed in Newsday, “How can my children prove they own my houses after I die?”, a woman is concerned about her children being able to prove ownership of the two houses. In addition, Florida has special laws that protect the homestead.
The executor (Personal Representative in Florida) should engage an attorney to file the decedent’s will in probate court. In many instances, it’s the same attorney who initially drafted the will, however, I have probated many wills throughout Florida that I was not the drafting attorney.
After the probate judge reviews the document and other opening pleadings, he or she, more often than not, validates the will and issues “letters testamentary” or in Florida, "letters of administration." These letters authorize the executor to carry out the instructions in the will. If there is no will, then that same judge can appoint a qualified person to be the personal representative.
Children won’t be required to do anything to prove ownership of the houses without the probate process. After the decedent’s will is probated, it’s a public document, and a buyer’s title insurer will verify that the sellers—in this case the four children—do indeed own the house. A certificate of the court’s “letters testamentary” is not the only document the personal representative is required to have, in order to legally sell your house and to distribute the proceeds in equal shares to the children. In Florida, the title insurer would also usually require a Determination of Homestead, if it was the decedent's homestead at the time of death. A qualified probate attorney like DANIEL T FLEISCHER will be able to walk you through the process and explain the benefits of doing this properly. #411probate
In the case of a vacation home or second home or even commercial property out of state, to ensure that the house in a second state passes correctly, the executor will want to retain an attorney in that jurisdiction to file for what is known as “ancillary probate”, before the house can be sold. That state’s court will ask the first court’s state for “exemplified” copies or official copies of documents that include the death certificate, the will, letters testamentary and the signatures of the probate judge and county court, where the will was initially probated.
A meeting with an estate planning attorney who is admitted to practice in both of the states where the houses are located would be an ideal situation, but is not very common. He or she would be able to explain the process in depth. It may also be helpful for the children to meet with the attorney and the parent, so that everyone understands what will take place.
Do you live in Miami-Dade, Broward, or Palm Beach counties in Florida? Laws are constantly changing-- has your estate plan been reviewed in the last 2-3 years? Call me (954-888-1747) right away for peace of mind. I can help! Please visit www.411probate.com for valuable information.
- My practice is exclusively estate planning and probate,
- I have prepared numerous estate plans in 16 years of practice,
- I have administered estates and trusts through Probate all over Florida,
- I am a Certified Financial Planner Professional™, and
- I am here for YOU today and there for your FAMILY tomorrow.
Reference: Newsday (June 28, 2017) “How can my children prove they own my houses after I die?”