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The estate attorneys at Statewide Probate® understand that Florida probate law, including inheritance tax, deeds involving minors and missing heirs, and other estate issues, can become a bit overwhelming.
To help you get a better understanding of probate laws in the state, our lawyers have posted numerous articles on many facets of Florida probate law.
While a minor in Florida (most persons under age 18) can sign a deed, it's very risky because that deed is voidable, meaning it can be "undone". So how do you sell real property that has been left to a minor in a deceased's will, or descends to a minor in an intestate estate? The answer in Florida depends on whether the property is the homestead of the deceased. Read the rest of this article on minors and deeds.
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. Read the rest of this article on foreclosure roadblocks.
Absolutely, but both would be situations in which summary administration is not possible. A formal administration is required in either situation. Read the rest of this article on selling real property with a missing heir.
No, no, no, although once in a while we still see a title company 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.
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.
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. Read the rest of this article on problems for tax deeds.
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. Read the rest of this article on the probate creditor period.
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 deceased's property in this state, or any right, title or interest therein." Read the rest of this article on foreign wills and Florida probate law.
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. Read the rest of this article on non-Florida executors.
Sometimes. Fla. Stat. 741.211 provides, "[n]o common-law marriage entered into after January 1, 1968, shall be valid" Read the rest of this article on common law marriage in Florida.
No, according to two Florida court decisions addressing that question. Read the rest of this article on tenancy of spouses.
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. Read the rest of this article on appearing in court.
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. Read the rest of this article on summary probate length.
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. Read the rest of this article on heirs to Florida property.
With all of the intricacies of Florida probate law, from inheritance tax to missing heirs and everything in between, the estate attorneys at Statewide Probate want to help you with your probate needs. That is why we offer reasonable legal fees and a free initial consultation for probate cases. For more information on our services, contact our Florida estate attorneys today.