Probates
Probates
Real estate probate is the legal process that follows a homeowner’s death, where their property either transfers ownership to somebody or is sold. This is another way of describing the proceedings by which a decedent’s will is processed in court.
If a person has died without a will, or “died intestate”, then another procedure will have to be followed. The property that is taken into possession by a personal representative includes not only personal property, but real property as well. Examples of personal property include items such as art, jewelry, clothes, etc. Examples of real property include homes, land, condominiums, etc.
What Is Probate?
Defined simply, probate is the set of necessary steps in order to establish the validity of a will. It is the legal process of distributing the property/properties of the late person (aka decedent) upon death. The three primary purposes of a probate are to:
Identify and collect the decedent’s assets
Find out the decedent’s creditors and pay outstanding debts
Allocate the decedent’s assets to his or her beneficiaries
Probate Real Estate In South Florida
Have you found an excellent property to purchase only to find that the property is owned by someone who died years ago? If this happens to you, don’t lose hope. Because it’s possible to get the ownership into a person capable of selling the property, but you must act as soon as possible. Our probate attorney can help you on top of determining the proper procedure to transfer title to someone who can sell the property.
Have you found an excellent property to purchase only to find that the property is owned by someone who died years ago? If this happens to you, don’t lose hope. Because it’s possible to get the ownership into a person capable of selling the property, but you must act as soon as possible. Our probate attorney can help you on top of determining the proper procedure to transfer title to someone who can sell the property.
Before knowing the different types of probate proceedings and speaking to a probate attorney, you should know:
When property is subject to a probate real estate.
If ownership of a property is solely within the decedent’s name or if ownership of the property is the decedent’s name and one or more other person’s names as tenants in common (without a right of survivorship), some form of probate administration is necessary to convey the property in question.
When property is NOT subject to a probate real estate.
Title to property usually passes to a different owner without the necessity for probate administration within the following circumstances:
The decedent was married at the time of death and the ownership of the property was held as husband and wife (tenancy by the entireties).
If the decedent and one or more other persons as joint tenants with a right of survivorship holds ownership.
If the decedent’s ownership interest was a life estate with a remainder interest to another.
If ownership of the property is under a trust.
Types Of Probates
There are different sorts of probate available in Florida. The form of probate required for a decedent’s estate will generally depend upon the decedent’s date of death as well as the value of his or her probate estate.
Formal Administration:
Recognized as the traditional form of probate in Florida, a formal administration proceeding can vary depending on the measurements of the decedent’s estate, the involved assets , outstanding debts, and also the beneficiaries.
Summary Administration:
Summary administration in Florida is a probate for little estates. To be eligible, the estate must contain less than $75,000 value in assets which excludes the decedent’s homestead subject to probate, or the decedent ‘s passing should be over 2 years from the date of the filing of the pleadings.
Ancillary Administration:
Ancillary administration is a secondary probate form utilized when the decedent’s primary estate is in a different state outside Florida. Ancillary administration is usually required in Florida if the decedent wasn’t a Florida resident upon death, and passed away owning property in Florida.
Admission of Will from Foreign Probate to Record in Florida:
In many cases the decedent will have been a resident of a state outside Florida and the probate within that other state will have been completed and closed. Ancillary Administration cannot be an option at all unless the probate within the other state is reopened.
Determination of Homestead:
Under this special procedure for homestead property, the court issues an Order Determining Homestead which distributes the homestead to the persons named within the will or, if intestate, the persons entitled to the property by law.
Disposition of Personal Property without Administration:
This is a form of proceeding that occurs in probate court; however, it is not technically a form of probate. This option is only available in limited circumstances when the value of the probate assets is less than the funeral expenses.
How Magnolia Law Can Help
Certainly there are situations when probate-avoiding estate planning is sensible. However, avoiding the expenses of probate might not be enough to justify the unintended ramifications of careless estate planning. Before transferring assets or naming beneficiaries, careful thought and discussion should ensue together with your estate planning team, consisting of your tax professionals, investment and banking professionals, and of course your probate attorneys.
