When someone dies in the state of Florida, it is likely that their estate will need to go through the probate process to legally pass the real estate and other assets belonging to the deceased on to their desired heirs/beneficiaries.
In simple terms, it is the legal process by which the assets belonging to someone that dies are properly distributed (a valid will is in place), or distributed according to the law by a court-appointed representative (if no will in place, called intestate). The court appoints, by direction of a valid will if it exist, a personal representative or executor of the estate, which is the person that will oversee that the estate is used to pay outstanding debts and then distributed properly. The goal is to make sure all bills/debts/taxes are paid before anyone else gets their inheritance. The process ensures the personal representative designated by the court is authorized and that the process is handled according to established law.
Formal administration and summary administrational are options in Florida. Summary administration may be available if the value of the estate subject to probate is not more than $75,000 or if the dependent has been deceased for more than two years. Several other rules come into play so a discussion with an attorney is important when determining what type of probate administration is required.
Probate is often necessary to ensure real estate changes hands with a clear title. And, in Florida an attorney must be part of the process in most circumstances. It is also very helpful to have a real estate agent that is knowledgeable about this unique process. The probate court will grant permission for the personal representative to take action (called Letters of Administration). Once this happens, specific steps should happen for the sale of real estate to be valid.
The probate court will establish requirements that must be followed (Orders for Probate). If the real estate is to be sold, the personal representative will have the authority to sign a listing 1 agreement with a real estate brokerage and will be instructed to sell the property at the “best price.” Determining the “best price” can be challenging if beneficiaries are not in agreement. This is where the assistance of a mature, knowledgeable real estate agent can be especially helpful. You will likely need a professional appraisal or a quality market analysis provide by a real estate agent to prove that the property is sold at market value. The orders may also stipulate things like the deposit that must accompany an offer, if it has to stay on the market for a specific period of time, and how multiple offers are handled. Florida’s homestead laws can get complicated in these sales, so it is important to understand the rules and seek guidance from a real estate attorney. The personal representative is the legal representative for the sale, and the home can often be sold before the probate process is complete. This can even be very beneficial if a mortgage still exists or other debts need to be satisfied. The court normally needs to affirm the sale so it can be finalized, and the personal representative along with their attorney will submit paperwork to the court to obtain approval for the sale. The sale proceeds may be held in escrow (usually by the attorney) for a period of time (this is known as the creditor’s claim period - often 90 days) and are then distributed according to the will or Florida law.
Every situation is different. The representative may need to sell the real estate before settling the probate estate or resolving any disputes from creditors or lawsuits that challenge the validity of the will. These types of situations naturally extend the process. Considering the 90 day creditor claim period, basic probate can take approximately six months to complete. Please see the probate timeline document that is part of my newsletter for more information on this.
You must qualify to be a personal representative under Florida law which means you must be a Florida resident or a close relative of the decedent, of legal age and mentally and physically able to perform the duties. You also can’t be a convicted felon. The court determines who is qualified. The list of responsibilities is long and includes safeguarding assets and security property, selecting the probate attorney and real estate agent, petitioning the court for probate of the will, assembling records and inventorying assets, notification of the death, managing ongoing business interest, paying taxes, settling claims, selling property, distributing proceeds to beneficiaries, etc.
As a Certified Real Estate Specialist, I will help guide you through the process of selling property that is part of probate. You tell me what you need: best price, immediate sale, help navigating the process, vetted resources for repairs, professional service providers, etc., and I will provide you with options to evaluate so you can make the right decision for your situation. Then, I will walk you through the process and handle the details of the sale. I will help you meet important deadlines and make sure the sale goes smoothly. As a Certified Probate Real Estate Specialist, I have received the specialized education and training on the probate process, and I understand the state of mind and responsibilities the Personal Representative must execute to complete the probate process successfully. Can’t you use any realtor for this? Yes, but why not pick one that specializes in helping families who have inherited properties in probate and trusts. It is a special knowledge set that can make a hard process less daunting.
The general information in this article is not provided by legal counsel and is not intended to be legal advise. Please consult an attorney on the specifics of your situation.