Probate and Settling An Estate in Florida

Real estate is often the largest asset left behind when a person passes away. As a real estate agent I have been involved with the settling of many estates located here in South Florida. I am a Certified Probate Real Estate Specialist. In these pages I provide an overview of the Florida Estate Settlement & Probate process for those that have recently lost a loved one and as an executor or personal representative must settle the estate. Before any assets of the descendant can be sold, certain steps must be taken. I can assist you in that process. I have a team of vendors in place to assist you in preparing real estate to be sold and finding the proper legal assistance.

Transfer of Estate Property - The Process

The Will

A Will is a written and legally executed document by an individual (testator) who wants his or her directions known and implemented, regarding the distribution of their property and assets after their death i.e., Estate Settlement. Until death the Will document has no power or authority. Prior to death a will can be changed an unlimited amount of times by the testator. If there are various wills on file the latest dated (and properly executed) will is the instrument that becomes activated on death. (see The Will)

The Executor

One of the rights of the testator in their Will is to appoint and name an adult person or entity as the Executor or Executrix. The Executor can be a person, an attorney, or a trust company (or a combination) appointed in the Will to carry out the instructions of the deceased and to do what is necessary to (properly) settle the deceased’s probate estate. It is common to have a primary and a secondary Executor (to serve as a backup), if the primary cannot or elects not to serve. There also can be more than one Executor named to share in the duties. If the person named in the will declines the position the courts may appoint a Personal Representative

Death without a Will

If the deceased has not left a valid will, they are declared to die intestate and thus they have failed to designate an Executor. In Florida the county Probate court will designate a Personal Representative. In most cases the spouse or adult children are named the Personal Representative. The Personal Representative will have the same fiduciary duties and responsibilities as an Executor.

Probate

Probate is the legal procedure for settling a decedent’s estate. In Florida Probate laws are implemented by county probate courts and offices within the county the deceased was domiciled. Some property or assets may not be subject to the procedures of probate.

Types of Ownership of Property

Tenants by Entireties

Only a husband and wife can own property in tenants by entireties. When real property is owned by husband and wife, it is assumed that the title is held as tenants in entireties. When one spouse dies the other spouse gets the entire property and does not go through probate. If the decedent owned property in their sole name at the time of death probate is required

Joint Tenants with Rights of Survivorship

The titling of property Joint Tenants with Rights of Survivorship is a form of ownership between two or more unmarried persons. When a tenant (person) dies the surviving persons get the property and it does not have to go through probate.

Tenants in Common

Jointly held owned property (excluding the spouse) which is not titled joint tenants with rights of survivorship will be legally presumed to be held in tenants in common. Under the tenants and common ownership each share of the property of the deceased goes to the heirs or beneficiaries as determined by the will or state statute and will be pass through the probate procedure.

Transferring Non-Probate Property

In some circumstances, property titled tenants by the entireties and joint tenants with right of survivorship can be transferred to the surviving tenant by filing a certified copy of the death certificate with the clerk of the circuit court. A certified copy of the death certificate may also be required documentation with the Department of Motor Vehicles for the transferring of the title and registration of an automobile. Accounts with banks or financial institutions will also need a certified copy of the death certificate to remove the decedents name from an account.

Trust and Trustees

A Living Trust (inter Vivos) is a trust established by the decedent (grantor) during their life-time and providing for disposition (distribution) of the trust assets following their death. These assets will be handled by the stated trustee in the governing document of the trust. The trustee on the trust may be a different entity and have different duties vs. the Personal Representative named in the will.

Completing the Settlement of an Estate

The Executor named in the Will and the Trustee named in the Trust has the power, responsibility and the legal duty to effectively complete the Estate Settlement process. The same holds true when a Personal Representative is designated by the probate courts.