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Sometimes Florida probate administration can have an air of mystery. An heir to an estate may be missing (unable to be located) or incompetent. If an estate wishes to sell property with a missing heir, what is the proper protocol?
In the following article, our probate attorneys outline Florida probate law as it applies homesteads and missing heirs.
If the personal representative cannot find the missing heir after the sale of the property, then he or she can get permission from the probate court to deposit that share with the clerk of the court. There it would sit for six months, following which the clerk would send it to the Unclaimed Property agency of the state. If after seven years there it is still unclaimed, it 'goes to the State of Florida.
This could be either an heir with a mental disability or the "disability of nonage"- in other words, a minor. If the incompetent heir has a legally appointed guardian, that guardian can receive the heir's share of the proceeds from the probated estate. For minors, small inheritances (under $15,000 in Florida, different amounts in other states) can usually be received by a parent as a "natural guardian," but over that amount will require a legal guardianship. For adult incompetent heirs without a legal guardian, sometimes there is a family member holding a durable power of attorney that may suffice for that purpose. If there is no legally sufficient power of attorney and no legal guardianship, often the probate court will require that a legal guardianship be set up in the state and county where the incompetent heir resides.
At Statewide Probate, a division of McDonald Fleming Moorhead in Pensacola, we offer a free consultation for Florida probate administration cases. Our probate administration firm welcomes clients from Jacksonville, Tallahassee, Miami, Sarasota, Daytona Beach, Tampa Bay, Fort Lauderdale, and throughout the state. Contact our Florida probate and homestead attorneys for a free consultation. Our knowledgeable staff can handle the legal aspects of your probate and offers reasonable estate fees.