What Happens to My Parents’ House When It Enters Probate in Florida?

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By Gary M. Landau, Esq.

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What Happens to My Parents’ House When It Enters Probate in Florida? | Call (954) 979-6566

It’s never easy to deal with the probate of a parents’ estate after they pass away. And that’s even more true when it comes to the house your parents lived in–and perhaps that you once resided in too. But once the strong emotions subside a bit, most people realize that holding onto a home where no one now lives does not make financial sense.

At this point you’ll want to go through the legal process that will allow you (along with any other heirs) to legally sell the property.

People sometimes think if they are named as beneficiaries in their parent’s will they will be able to automatically sell their home. But unless you are a co-owner of the property, and listed on the deed in a specific manner, that is not the case.

Instead, the home, along with other assets, needs to go through the process of probate according to the laws in Florida. This involves working with an experienced probate attorney, who will begin by filing the necessary paperwork with the court. A probate judge then appoints the person named in the will as the personal representative (PR), who is put in charge of handling the estate. Once appointed, the PR can start the process of engaging a Realtor and selling your parents’ home.

The Law Office of Gary M. Landau, P.A., has more than two decades of experience with Florida’s probate process. The firm probates estates in every county in Florida. If you are in need of a probate attorney or want more information about the process, call us at (954) 979-6566 or fill out our online form to schedule a free consultation.

Why Your Parents’ Home Generally Must Go Through Probate

If the deed of the home is in the name of both your parents or of your last surviving parent, it will likely need to go through the probate process in Florida.

This is not the case in a few situations. These include:

  • The home was properly placed in a trust during your parents’ lifetime, and the named successor trustee is still alive.
  • The deed for the home is not only in your parent(s)’s name but includes you or another heir, and the deed exactly states that there is “joint tenancy with rights of survivorship.” In that case the “survivor” of the joint owners (e.g., you) automatically owns 100% of the property as soon as the other joint owner (or owners) passed away.

Why Primary Homes Are Treated Differently from Other Assets in Florida

The home that your parents lived in was most likely considered by the property appraiser’s office as being “homestead property.” This is a legal taxation designation in the state of Florida that applies to a person’s primary residence.

Homestead property is treated somewhat differently from other assets a person has left to their heirs. For example, the law requires that all heirs, not only the personal representative, must sign the deed that transfers the home at the time of its sale. (The PR can transfer all other assets without the involvement of the other heirs, although of course those heirs receive whatever share of the estate they are left in the will.)

Once the PR is appointed and the home eventually sold, the probate attorney who handled the real estate closing will properly distribute all assets, under the guidance and consent of the probate court.

Types of Probate in Florida and What They Mean for Real Estate Inheritance

Many people wonder how long it takes for the probate process in Florida. And the answer is, it depends–although it generally moves fairly quickly.

Specifically, the length of probate hinges on the size and complexity of the decedent’s estate and the type of probate required because of these factors.

Formal Probate Administration

Most estates in Florida go through formal administration. This process involves inventorying and valuing a decedent’s assets, notifying potential creditors of the decedent’s passing, paying off outstanding debts and taxes, and, with the supervision of the court, distributing assets to all beneficiaries.

When a home is part of the probate estate, the judge initially grants the beneficiaries status as the new owners, after which they are able to sell the property. (Or rent it out, or keep it for their own personal use.)

Typically, formal administration takes anywhere from 6 to 9 months to complete. However, the home can be put on the market (even if proceeds cannot be distributed to heirs) during this time.

Summary Administration

Per Florida statutes, an estate can undergo summary administration (a simplified probate process) if the estate is worth under $75,000 or if the decedent died more than two years earlier.

Since the final deadline for creditors’ claims in Florida is two years after the decedent’s passing, summary administration doesn’t need to consider creditors claims, and for this reason and others it is a speedier process.

Maintaining the Home During the Probate Process

When a house is involved with a probate, it is important that the heirs protect the asset to prevent it from being damaged or foreclosed during the probate process.

This includes:

  • Continuing to pay monthly maintenance, taxes, mortgage, insurance, electricity, and other fees involved regarding the home.
  • Continuing to maintain the lawn and exterior of the home.
  • Ensuring the home is secured so squatters don’t decide to take up residence.
  • Asking a neighbor or other area resident to keep an eye on the property.

It is crucial that the personal representative for the estate continue to make monthly mortgage payments. Failure to keep up with the mortgage payments may result in foreclosure.

Inheriting a Heavily Mortgaged Home

During the probate process, some people discover that their parents had a mortgage on their property. This may be the case even when they lived in the home for a long time, because they may have refinanced or taken a home equity line (aka a second mortgage) at some point.

In some cases, when a property is so heavily mortgaged and the potential sales price is low, it may not pay to keep making mortgage payments that would protect the heirs’ future ownership of the home, because it is not a home they can sell at a profit.

In these cases, the probate attorney can negotiate with the mortgage holder to get them to foreclose on the property. This absolves the heirs of the need to make future payments. Under Florida law, the lender cannot claim a person’s personal funds if they forego paying a mortgage on inherited property. They simply lose the property to the lender.

Do I Need to Look for a Probate Lawyer in My Area?

Probate in Florida almost always requires a lawyer. An experienced FL probate lawyer:

  • Helps the personal representative get appointed
  • Assists with the legal paperwork that leads to the settlement of the decedent’s affairs
  • Works to resolve debtor claims
  • Efficiently takes care of all probate court requirements, thereby speeding up the process
  • Resolves conflicts between beneficiaries or between beneficiaries and the PR or beneficiaries and others not named in the will.

Working with an experienced probate attorney can save you time, hassle, and money. If you are the heir to an estate, it is important that you contact a reputable, local probate lawyer as soon as possible.

The Law Office of Gary M. Landau, P.A.: Probate Attorney in Broward County, FL

The probate process in Florida can be long and complex. Attorney Gary M. Landau and the rest of our legal team guide clients in Coral Springs, FL, across Broward County, Palm Beach County, and every county in the state of Florida through the process.

With more than 25 years of experience and countless satisfied clients, Gary M. Landau and his team are uniquely positioned to help you with your probate and real estate needs in South Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you are purchasing a home, have inherited a home, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the Law Office of Gary M. Landau is ready to work with you.

Call our office at (954) 979-6566 or complete our online form today to schedule a free consultation. We work with our clients in person, over the phone, or on Zoom.

Copyright © 2023. LAW OFFICE OF GARY M. LANDAU, P.A. All rights reserved.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.

LAW OFFICE OF GARY M. LANDAU, P.A.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
(954) 979-6566
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Frequently Asked Questions

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

 

Having a will is doubly important if you have young children. One section of the will allows you to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children, who may not be the person you desire.

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

 

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

 

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

 

  • You have gotten married since it was last drafted;
  • You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
  • You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
  • You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

 

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

 

As an alternative, you could store the will in a fireproof box or vault in your own home.

 

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

 

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

 

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

 

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

 

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.
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