No one wants to think about what will happen to their assets when they die. Most adults find it awkward to discuss how their property in Florida will be distributed when they pass away. As such, surviving family members can be left trying to sort out how to divide their parents’ estate among themselves. This article will focus on what happens when a parent dies owning real property in Florida.
There are different rules affecting how Florida property is distributed including real property laws, intestacy, or succession laws. In other words, how the property was titled prior to the death of the property owner and or whether a last will and testament was properly executed. Each can give rise to various challenges and legal outcomes.
Current State of the Property Title
First, if one asset of the deceased person’s estate is a Florida property that is owned by more than one party, and the current title to the property is a joint tenancy with the right of survivorship, then the living title holder or holders of the joint tenancy are automatically the record title holder(s) of the house. If the deceased was married at the time of death, and if the surviving spouse was on title to the property at the time of the decedent’s death, then under the joint tenancy rule, the surviving spouse is by law the legal record title owner of the house (100%), individually, and without having to do anything. Any other heirs in the succession line are excluded and not entitled to any interest in the joint marital property.
The surviving spouse now must ask himself or herself what happens to their property upon their death now that they are the sole owner of the property. Talking to an experienced real estate attorney about changing their deed could be a cost-effective solution to accomplish the goals of the surviving title holder.
Some joint tenancy situations can produce unintended results. In cases where there are multiple surviving unmarried joint title holders, the death of one joint tenant likely severed the joint tenancy leaving them as title holders under a new tenancy-in-common ownership scenario. These rules are completely different from joint tenancy ownership. For example, the surviving mom adds son and daughter to the title as joint tenants to preserve the legacy family estate. Mom and daughter have despised their son’s wife for years and had cut off all ties with her some years prior. Son/brother dies after mom and guess who daughter now owns the property with? If you guessed that the daughter now owns 50% of the family estate with her brother’s widowed wife who owns 50%, you would be correct.
Another common example of joint tenancies gone bad is when a mom or dad with children from a prior marriage remarries. In these instances, the deceased parent may have used her or his assets from the first marriage to purchase a property with a new spouse. If title to the property was not done correctly, then the unintended result is that the heirs of the deceased parent could be excluded from their deceased parent’s hard-earned equity that they otherwise would have been entitled to inherit. It’s not uncommon that the surviving children of the deceased parent are not happy with this result.
Titling Florida property correctly while all property owners are alive is an important, convenient and cost-effective way for property owners to assure what will happen to their Florida house upon their death and not leave their heirs bitter or in legal limbo.
With a Last Will and Testament
In situations where a parent dies owning property in Florida without a surviving spouse, the decedents’ heirs must first determine if their parent left a living will behind. In cases where there is a will, the provisions on the will document shall govern how the decedent’s property, such as a house, will be distributed. However, the surviving heir will first have to go through probate proceedings before the house can be legally transferred to the person(s) named in the will. The personal representative of the estate will then need to open an estate in the appropriate Florida court in the County where the property is located in order to allocate the distribution of the assets of the estate based on the provisions of the will. This process is known as probate. In instances where the property is the only asset of the estate, or where the estate is less than a certain amount, the heirs may be entitled to a simple or expedited probate which can be fast-tracked through the court system, typically within 90 days. A property owner can help their heirs expedite the probate process and spare them the time and additional expenses by having the correct deed in place prior to their death and or, leaving a living will with a person they trust if there are any other assets.
Without a Last Will and Testament
If the decedent did not execute a living will, then the Florida laws on intestate succession shall govern the distribution of the assets to the heirs. This also requires court involvement through a probate action though it may not be a simple or expedited probate as could be expected if there was a living will. There are various rules that apply under this scenario that are beyond the scope of this article but are discussed elsewhere in our blog.
For example, the direct lineal descendants, usually the children of the deceased will inherit the house if there is no surviving spouse. If the children come from the same marriage, everyone inherits equally, and they can discuss among themselves how to equitably divide any equity in the house.
Challenges can arise, however, especially in situations when children come from multiple marriages or when those who inherited the property cannot agree on an equitable distribution of the property. In these instances, usually where the house is the only asset, one of the heirs can file a partition action in the appropriate Florida court in the Florida County in which the property is located. In a partition action, the legal equitable owners of the property are telling the court that they cannot decide amongst themselves how to distribute the equity in the home and are requesting the judge enter an order to sell the property so the proceeds can be divided. Partition actions are common in Florida where parents retire and children live outside of the of the State. Typically, Florida courts will allow the disputing parties the opportunity to sell the house on their own but if they fail to do so within a certain time, then the property will be sold at a public auction. After all the expenses are paid, the court will determine who gets what from the remaining sale proceeds, if any. The parties need to recognize that a public auction does not mean fair market value and usually is significantly less. While this list is not inclusive, expenses can include court costs, real estate commissions, property taxes, documentary stamps, unpaid liens, and association dues. This process will take longer and can be complicated, which is why it is crucial to seek the assistance of an experienced licensed Florida real estate attorney if your parent died in Florida owning property.
Do You Need A Florida Real Estate Lawyer?
There is no one size fits all solution for issues relating to inheritance and succession or distributing real property. Each case is unique, so different laws may be applicable depending on certain circumstances. For this reason, it is vital to seek advice from an experienced Florida real estate attorney who can thoroughly assess your situation and help you evaluate the best course of action with tailored guidance on how specific Florida laws may affect you.
Our office has experience handling all types of real estate settlements, including complex issues like distributing properties after a parent’s death and litigating partition actions. The easiest and most cost-effective way to handle the distribution of a Florida property is to have the correct deed in place prior to the death of the property homeowner.
If you have questions about the current state of your title deed, or your parent’s title deed, give us a call today to set up a consultation. We can help you figure out what might be done now to avoid probate and future disputes and, what will happen to the house under these scenarios should you or your loved one pass away.