Why It’s Not Pretty – Real Estate in Probate
When Someone Dies Owning Real Estate in Florida, the Title to That Property Passes as of the Date of Death
- Why is this a problem? Because we often don’t know right away who it passed to and where they are. For example, if the person died with a will, then the will needs to be probated to confirm the beneficiaries. And if the person died without a will, then probate is still required to determine the heirs. And probate takes time.
- Why is this a problem? Because someone needs to secure the real estate from trespassers, and someone needs to get insurance in the new owner’s name. What if someone gets hurt on the property? What if the house burns down?
- Why is this a problem? Because the person needs authority to do those things, either by court appointment by the probate court or by some other legal means. Also, someone might need access to the real estate to look for wills, trusts, deeds, and other records.
These are just some of the issues faced when someone dies owning real estate in Florida. Here are more:
Who Could Possibly Own It?
- Did the person who died leave a will? How many? Where is the signed original? Is the will being contested? Where are the beneficiaries?
- Did the person leave a trust? Was the real estate titled in the trust’s name? Is the trust contested? Who are its beneficiaries?
- Did the person have a title insurance policy? Has it been updated after death to show the current state of the title?
- Did the person live on the property as homestead?
- Did the person have a surviving spouse, a minor child, or children who were not the surviving spouse’s children?
- Was the real estate owned by an entity, such as a corporation, LLC, or partnership? What was the decedent’s interest in it? Is there an original share certificate or proof of ownership?
Who Has the Right to Access and Possess It?
- Is there a tenant on the property? Is there a lease?
- Is there a pending contract for sale?
- Is the property listed for sale?
- Is there a written listing agreement?
- Is there a family member living in the property?
- Is there a friend or significant other living in the property?
- Is there a co-owner there?
Who Has Authority to Deal With It?
- Is there a power of attorney? It probably doesn’t matter since they usually expire at death.
- Has the probate court appointed a personal representative?
- Did the person who died have a court-appointed guardian?
What About Creditors?
- In Florida, creditors are generally entitled to be paid before beneficiaries, so has notice to creditors been published in probate and have any claims been timely filed?
- Are all tax returns filed and taxes paid?
- Are there any mortgages or liens on the property?
Are There Any Environmental, Zoning, Building or Governmental Problems?
When someone dies, it’s not unusual for property maintenance to slip and end up being in violation of various codes and statutes. If this occurs, it could end up reducing the value of the property significantly, as well as incurring fees and penalties.
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