After you lose a loved one, there are many decisions that you need to make in order to carry out your loved one’s wishes. If your loved one had a will or owned certain assets at the time of death, such as a house, car, boat, bank accounts, or investment accounts (really any asset where a third party keeps track of who owns it), probate will need to be opened in order for the assets to be transferred according to your loved one’s wishes. Well, the first step to opening probate is figuring out what assets were owned by your loved one, whether there is a will, and where you will need to file. This post will cover whether you need to open probate to transfer your loved one’s assets.
What does probate do?
Under section 733.103(1), Florida Statutes, “Until admitted to probate in this state, or the state where the decedent was domiciled, the will shall be ineffective to prove title to, or the right to possession of, property of the testator.” First, the decedent is the person who has passed away and the testator is the person who created a last will and testament. In this case we are talking about the same person. This section of the statute means that property that was owned by someone who died cannot be legally transferred to someone, unless it is transferred through a probate proceeding. Now, there are ways around the probate requirement for some assets, and we will cover those ways in another post.
A will does not automatically transfer assets. The estate still needs to go through the probate process.
Sometimes people may believe that just because their relative stated that their house was to be given to them in their will, after that relative dies, they automatically are the owner of the house. Unless there was a special deed, typically called a lady bird deed or enhanced life estate deed, executed by the relative, this is typically not the case. The only way that the house can really be transferred to the person identified in the will is through a probate administration. The property needs to go through a probate administration in order to pay any creditors of the estate and to make sure that the property is transferred to the right person. Only after the probate court issues an order indicating that the house has been transferred to the person named in the will is that person the legal owner of the property.
This same issue applies to cars, boats, bank accounts, investments, and other property that is titled in the name of a person who has died. In order for this property to be legally transferred, it needs to go through the probate process. So, if you know that you were named in a person’s will and you were to receive property from that person after the person passed away, you need to see if a probate administration was opened. If there was no probate case after your loved one passed away, you may not be the legal owner of the property that was supposed to be transferred to you.
Contact us today to schedule a free consultation to see if a Florida probate administration is required to transfer assets of a loved one’s estate.
The best way to figure this out is to talk to a probate attorney. One of our attorneys can review the public records and may be able to tell you if property was properly transferred to you from a person who has died. If the property has not been properly transferred because probate was never opened, our attorney may be able to help you to get the property transferred and to make sure that your loved one’s wishes are properly carried out. Contact us today for a free consultation. During the consultation, one of our attorneys will review the assets of your loved one’s estate, any wills that your loved one executed, and will discuss what may need to be done in order to transfer the assets. If probate is needed, we will go over the process with you and answer any questions you may have.