Before discussing the different types of probate proceedings, you should know when property is subject to probate and when it is not.
1. When is property subject to probate? If ownership of the property is solely in the decedent’s name or if ownership of the property is the decedent’s name and one or more other person’s names as tenants in common (without a right of survivorship), some form of probate administration is necessary to convey the property.
2. When is property of the decedent not subject to probate? Title to property usually passes to another without the need for probate administration in the following circumstances:
a. The decedent was married at the time of his death and the ownership of the property was held as husband and wife (tenancy by the entireties).
b. If ownership is held by the decedent and one or more other persons as joint tenants with a right of survivorship.
c. If the decedent’s ownership interest was a life estate with a remainder interest to another.
d. If ownership of the property is in a trust.
For the purposes of this article, we will be looking at five different types of probate for Florida property: Formal Administration, Summary Administration, Ancillary Administration, Admission of Will from Foreign Probate to Record in Florida, and Determination of Homestead.
1. Formal Administration. Formal Administration is the procedure that most people associate with probate. It is applicable if the total value of the decedent’s estate exceeds $75,000 or if the decedent’s will directs formal administration. A decedent either dies testate (with a will) or intestate (without a will). If the estate is testate, then it is administered pursuant to the terms of the will. An intestate estate is distributed according to the provisions of the intestate law of Florida.
In formal administration an interested party files a petition with the court to open the estate and to admit the will to probate (if there is a will). The court appoints a personal representative to administer the estate. The personal representative has authority to sell any real property in Florida. It also has the duty to determine if the decedent had any creditors and to make sure all of the decedent’s debts are satisfied. The personal representative determines the identity and shares of the beneficiaries and distributes the assets of the estate. A formal administration takes a minimum of five months to complete.
2. Summary Administration. If the total value of the probate estate is less than $75,000 or the decedent has been dead for more than two years and the will does not direct formal administration, Summary Administration is available to settle the estate. Under Summary Administration no personal representative is appointed. Instead, the court issues an Order of Summary Administration which sets forth distribution of the assets. Any sale of Florida real property must be made by the beneficiaries named in the Order. They must all sign the contract and deed.
3. Ancillary Administration. This is a proceeding for decedents who are not residents of Florida but who owned real property in Florida. The probate proceedings from the state of residency are transferred to Florida and an ancillary personal representative is appointed. From that point, the procedure is similar to Formal Administration.
4. Admission of Will from Foreign Probate to Record in Florida. In many cases the decedent will have been a resident of a state other than Florida and the probate in the other state will have been completed and closed. Ancillary Administration is not an option unless the probate in the other state is reopened. Florida law provides for a procedure to address this situation. The will can be admitted to record under Florida law if the will had been executed the manner required under Florida law and if it had been admitted to probate in the appropriate court in the state of the decedent’s residency. If this is the case, the Florida court may be petitioned to admit an authenticated copy of the will to record. The court will grant this petition if the following requirements are met: (a) the decedent has been dead for more than two years or the executor in the other state’s probate proceedings has been discharged, (b) the will is accompanied by authenticated copies of relevant documents of the probate proceedings in the other state, and (c) there has been no proceeding to administer the estate of the decedent in Florida. If the court admits the will to record, then it will be effective to pass title to real property in Florida as set forth in the will. Therefore, the persons named in the will to receive the property will have full title and authority to sell the property.
5. Determination of Homestead. This is a special procedure for homestead property within Formal Administration. Under this procedure, the court issues an Order Determining Homestead which distributes the homestead to the persons named in the will or, if intestate, the persons entitled to the property by law. If the beneficiary is a spouse or lineal descendant of the decedent, the homestead property is exempt from the claims of the decedent’s creditors. Any sale of the homestead must be made by the beneficiaries or heirs named in the Order.
If the property you are listing was a decedent’s homestead, you will need to consider certain items. First, the personal representative may not have authority to sell the homestead. As we saw above, the homestead must be sold by the beneficiaries or heirs. Second, Florida puts some severe restrictions on the persons who may receive homestead as the result of a death. The homestead may be devised by a will if the decedent is not survived by a spouse or minor child. If there is no minor child, the homestead may be devised only to the spouse. If the homestead is not properly devised, the will is overruled and the surviving spouse owns the property for his or her lifetime, after which the lineal descendants of the decedent become the owners. In this situation, the surviving spouse and all of the decedent’s lineal descendants must sign the contract and the deed.WHEN CAN THE PERSONAL REPRESENTATIVE SELL THE PROPERTY?
In many cases the success of a sale depends on the closing occurring in a timely fashion. It is important that the personal representative have the authority to sell the property as early as possible. This section addresses when the personal representative can execute the deed and sell the property.
If the will contains a power of sale, the personal representative is authorized to sell the property upon being appointed by the court. If a decedent dies intestate or executes a will with no power of sale, a personal representative may sell real property only with the authorization or confirmation by the court. No marketable title passes until the sale is authorized or confirmed by the court. In any case, the proceeds of the sale cannot be distributed to the beneficiaries until after all of the decedent’s debts have been paid (at least three months after the opening of the estate).
You or your real estate agent should prepare the contract to accurately describe the transaction and to protect the parties involved. There are certain provisions you should consider incorporating into the contract when selling a decedent’s property.
1. The contract should specify that the seller will be the personal representative, e.g. “John Doe, as Personal Representative of the Estate of Richard Roe.”
2. The contract should state that the conveyance will be by a personal representative’s deed as opposed to a general warranty deed.
3. If there is no will or if there is no power of sale set forth in the will, the sale should be made contingent on the authorization of the probate court, e.g. “This contract is conditioned on Seller obtaining an Order Authorizing Sale from the probate court of ______ County in the Estate of Richard Roe.”
4. The closing date should be set as a certain number of days after the receipt of the Order Authorizing Sale.
5. If the property was the decedent’s homestead and is being sold prior to a judicial determination of homestead (Order from the court), the personal representative and all beneficiaries (if there is a will) or all heirs (if there is not a will) must sign the contract and the deed.