Our firm receives many calls from people saying that the person thought he or she owned his or her parents’ house, but after some investigation, the person does not own the house. The person discovers this problem when they go to sell the property and he or she finds out that they need to put the house through probate before it can be sold. It’s a common misconception that a will automatically transfers property to the beneficiaries. If a loved one owns a home (or really any titled asset) at the time of his or her death, the property typically needs to go through the probate process before the beneficiaries or heirs are the official owners of the property.
When do assets need to go through probate administration to be transferred to me?
The requirement of probate for titled assets in Florida is set out in section 733.103, Florida Statutes. Under section 733.103, “Until admitted to probate in this state or in the state where the decedent was domiciled, the will shall be ineffective to prove title to, or the right of possession of, property of the testator.” This means that a will alone is not enough to prove that a particular person owns a piece of property.
There are some instances when probate can be avoided through joint ownership or through beneficiary designations. However, if neither of these situations apply, the properly likely needs to go through a probate administration in order to be transferred. Here are some examples of times when property needs to go through the probate process prior to the transfer of ownership to a beneficiary include:
- A father was the only owner of a house. He stated in his will that the house was to be transferred to his children in equal shares. Upon the father’s death, the children do not own the house. The house must go through the probate process first. A personal representative’s deed may transfer the property in formal probate administration, or after summary probate administration is complete, the court will issue an order showing that the children are the new owners of the house.
- A mother was the sole owner of a car. The mother stated in her will that the car was to be transferred to her son. After she passes away, the son does not own the car. The car needs to go through probate in order to be transferred to the son. At the end of the probate, the court will issue an order stating that the son is the new owner of the car.
- A grandmother owns a bank account. She did not designate any pay on death beneficiary on the account. In her will, she left the account to her granddaughter. After the grandmother dies, the bank will not transfer the account to the granddaughter if the granddaughter is not a pay on death beneficiary for the account. The account must go through probate in order to be transferred. At the end of the probate administration, the court will issue an order stating that the granddaughter is the new account owner. The granddaughter can take that court order to the bank and the bank will transfer the account to her, as long as there were no creditors or all creditor claims are paid.
There is one major item in common in these examples: the probate court is issuing an order declaring the beneficiary the owner of the property. This is because the probate court conducts a process to make sure that the rights of the beneficiaries and any creditors of the decedent (the person who passed away) are followed. This involves proving the will, providing notice to creditors, taking possession of the decedent’s property, and other processes to make sure that all interested persons’ rights are protected. The probate court is certainly not perfect, but the law is designed to protect these rights the best it can.
What should I do if I think I need a probate administration?
If you think that you may be the owner of a house or other property because it was transferred to you through a will, check to make sure that probate was completed for your loved one’s estate. If probate was not completed and there is no order transferring the property to you, you may not actually own the property! Most people that we talk to in this situation find out they’re not the owner when they go to sell the house. The title company conducts a title search and discovers that the property was never transferred through probate. As a result, the person is required to wait to complete probate. This wait can be several months, when they were hoping to quickly sell the home. The best way to avoid this situation is to talk to a Florida probate attorney. A probate attorney will be able to check the official records and court records to see if there was a probate order entered that transfers the property to you. That way you’ll know whether you need to conduct probate and you’ll be ready to sell the property when the time comes.
Contact us today to schedule a free consultation.
The attorneys at Richert Quarles P.A. provide free consultations. If you think you may need to conduct probate to transfer property to you left by a loved one through a will, contact us today to schedule a free consultation. We will take a look at your situation and will be able to tell you if probate needs to be completed. Our firm’s practice focus is probate and we will be able to efficiently represent you in any probate administration. Contact us today to schedule your free consultation.
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