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- Roadblocks in foreclosures of real estate owned by
a deceased person. As the soft real estate market produces fewer
closings and more foreclosures, determining the proper defendants to a
foreclosure proceeding comes up more often. Generally, to be valid, a
foreclosure lawsuit must serve, either personally or constructively, all owners
of real estate. The issue is determining who owns real estate when the record
owner is dead. More...
- Can an estate sell real property
with a missing heir or incompetent heir? Absolutely,
but both would be situations in which summary administration is
not possible. A formal administration is required in either
situation. More...
- Does the Personal Representative
need to sign the deed for homestead? No, no, no,
although once in a while we still see an underwriter insisting
on this. The standard Order Determining Homestead states clearly
that the Personal Representative has no claim on the homestead
and must deliver it over. The heirs are vested with title from
the moment of the previous owner’s death, and all heirs to the
homestead must sign the deed and other closing documents.
- Why is my underwriter still
requiring a Florida Final Certificate for estate taxes when no
estate tax is owed in Florida for persons dying in 2005 or
later? Good question, and the answer is that
although the tax has been eliminated (by effect of the federal
law which removed the credit for state estate taxes, upon which
Florida, Texas and many other states based their estate tax),
the Florida Legislature has not changed the old statute. So an
estate which must file a federal estate tax return must still
file a Florida F706 estate tax return, showing zero taxes owed
to Florida, and obtain from Florida a Final Certificate (which
is recorded as well as filed with the probate clerk). Although
the tax went off the Florida books in 2005, Florida law still
requires the filing of the F706 and issuance of a Final
Certificate. Why? According to one Florida official, that’s
because the Legislature wants to keep its tax collecting
mechanism in place, including forms and personnel, in case
Congress reinstates the credit for state estate taxes paid. If
that happens, instantly Florida will be back in the business of
collecting estate tax. Now it’s just in the business of
collecting needless papers.
- Another Problem for Tax Deeds. Some days it must be no fun being a circuit court clerk, I’m
sure. You have to watch all these statutory requirements in all
kinds of cases, and you do your best to follow the law
precisely. Then the supreme courts of Florida and the U.S. hand
down decisions that invalidate a lot of judicial sales you’ve
conducted carefully under a statute by declaring the statute
unconstitutional as applied. That must be like a contractor
following the plans and specs to the letter, only to be told
that they were given the wrong address for the house. Not your
fault but still not a good feeling.
More...
- Do underwriters still have to
worry about getting through the probate creditor period?
In our opinion, no. Sec.
733.613(3) Fla. Stat., which was amended in 2001 to provide
that a purchaser or lender of estate real property takes
title free of claims of creditors of the estate (except
those holding mortgages or other liens, of course) when the
sale is authorized by the will or by court order.
More...
- After a property owner dies,
can his or her power of attorney (POA) be used?
No. It has no “power” after the maker
(the property owner) dies. Without meaning any disrespect, a
good way to remember this is to recall that death turns a
POA into a “DOA.”
- Why does getting a foreign will
recorded under sec. 734.104, Fla. Stat. not suffice to pass
title? Excellent question,
as 30 years ago it was sufficient to pass title. Now, it
apparently is not. * Prior to 1977, the statute provided:
“(3) When admitted to record, the [foreign] will and any
codicil shall pass title to real property and any right,
title, or interest in it.” In 1977 the statute was changed
to a much less definite result: “Any will or codicil
admitted to record … shall be presumptive evidence of the
authority of any person authorized by such will or codicil
to convey or otherwise dispose of the decedent’s property in
this state, or any right, title or interest therein.”
More...
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Why is a deed signed by an executor from another state not
valid in Florida?
Florida law currently does not recognize the
power an executor from another state to distribute or sell
real property in
Florida. This is
a very confusing part of probate law because for some time
Florida had a statute which did permit foreign
executors to convey
Florida real estate.
More...
- When do grandchildren inherit a share and when do
they not, when there is no Last Will? Intestate
succession (no Will) is “per stripes” (by the roots) but the
“root search” stops when it finds an heir.
More...
- Does Florida recognize a common law marriage?
Sometimes. Fla. Stat. § 741.211 provides, “[n]o
common-law marriage entered into after January 1, 1968,
shall be valid….”
More...
- Can an estate be administered with a missing heir?
In many cases, yes. A missing heir is one who, although not
on the record title, has inherited a portion of the title
due to the death of an owner, but who cannot now be located.
More...
- Does a deed need to identify the owners as husband
and wife in order to create a tenancy by the entirety, which
would automatically pass title if one spouse dies?
No, according to two Florida court decisions addressing that
question.
More...
- When does a Personal Representative need a court
order approving a sale? A Personal Representative
needs such a court order to pass title in two situations:
(a) when the estate is intestate (no will), or (b) when the
will fails to give the Personal Representative the express
and specific power to sell the real property.
More...
- How long does a summary probate administration take? It
depends on the county and in some counties the individual judge.
The norm is one month; in a few cases it takes four months.
More...
- Is summary administration always the better way when
available? Sometimes it is not practical to use a summary
administration even it is an option. Examples:
1. The Will leaves the property to a large number of
beneficiaries, each of whom would have to sign the contract to
sell as well as the deed and other closing papers.
More...
- Which law determines the heirs of Florida property? It
may seem illogical, but Florida’s “intestate” law governs
estates in which there is no Last Will and determines who has
inherited the real property. It does not matter that the owner
never lived in Florida and never even came to Florida. If he
or she bought real property in Florida and died without a
Will, the law in Florida will determine who has inherited the
property.
More...
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