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.”

“Presumptive evidence” is hardly clear, but the language did not last long. In 1979 it was changed to the following language: “When admitted to record, the foreign will shall be as valid and effectual to pass title to real property and any right, title, or interest therein as if the will had been admitted to probate in this state.” That moved the statute from vague to “still vague” or maybe even “more vague.” What is the effect of any will admitted to probate in Florida? Does it pass title by itself or not?

That depends on the type of property and whom you ask. There are some underwriters which believe that title to homestead is vested with testate beneficiaries immediately, and do not even require an Order Determining Homestead Status so long as the Will is admitted to probate. Of course, by definition chapter 734 does not apply to homestead property, since it only applies to non-Floridians.

Underwriters in Florida appear generally uncomfortable with the concept of title to non-homestead property passing by admitting a will to probate, either foreign or domestic. A personal representative’s deed (with Florida letters of administration) or an order of summary administration are almost always required, either of which would make the procedure in chapter 734 to admit the will redundant and a waste of money since the foreign Will gets admitted under either formal or summary probate procedures. As a result, not very many petitions to admit a foreign will under chapter 734 are filed these days.

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