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Ward Damon

What Happens When Property Owners Die In Florida

Ward Damon

Mar 2024

When property owners die, what happens next is not always so simple or clear cut. Many assume the property they own in Florida will pass to their heirs in a “blink of the eye.” There are variables, including depending on the status of the title there may be no interest left for the estate, or the property may be subject to the claims of creditors. This all depends on the status of the title at the time of the person’s demise.

Let us explore what happens to a property based on who owns it, and with who:

Husband and wife: in this instance, property will pass to the surviving spouse at the time of death without any creditor claims to the property. In order for the surviving spouse to sell the property, it will be necessary to record in public records specific documents: a death certificate without the cause of death, a continuous marriage affidavit with evidence that that at the time of purchase and death the surviving spouse and the deceased remain continuously married, and a Florida no estate tax certificate.  These documents can be recorded immediately after the dying spouse’s death or prior to closing.

Join tenants: Property owned as joint tenants with full rights of survivorship passes to the surviving joint tenants. Similar to the transfer to a surviving spouse, is necessary to record the death certificate and Florida no estate tax certificate to clear title to the property.

Life estate: Property in this instance will pass to the remaining individuals on an estate at the time of death without any creditor claims to the real property. In order for them to sell, they must file death certificate and Florida no estate tax certificate to clear title to the property.

An individual with homestead exemption: if the homestead requires a probate, the value of the homestead will not be included in the deceased total estate which may mean that the probate may be conducted in a summary fashion. During the probate proceedings, a petition and an order determining homestead should be filed that would then completely remove the property from the probate process, passing title to the person’s spouse or children. In addition to recording the death certificate and the Florida no estate tax certificate, the order determining homestead should be recorded so as to show the fee simple interest of the deceased homestead heirs.

An individual without homestead exemption: Property owned by a person who dies that is not homestead will be subject to probate, the potential claims of creditors, and the power of sale set forth in the deceased.  If he or she was a Florida resident, the property will be treated in the same manner as other assets of the estate and either distributed to the heirs, or if the power of sale is vested, the property may be sold, with the net proceeds distributed to heirs. Clearing title to the property is the same manner as set forth above.

Out-of-state resident: when someone out of state with a Florida property dies, a probate case must be filed to transfer ownership to someone out of state in accordance with Florida law. Title must be cleared in the same manner as above.

 

If the person who dies has property subject to a mortgage, the heirs take title to the property subject to a mortgage. Unless the property is held by husband and wife or determined to be homestead by court order, the heirs must also take any existing judgments encumbered by the property.

Because of the cost and expense of a probate in Florida, especially for non-Florida residents who own property in the sunshine state, pre-death planning can be a valuable endeavor, in many cases. Using a revocable trust, a life estate or simply correcting a deed that vests title with ‘tenants in common’ instead of as ‘joint tenants’ with rights of survivorship can be a less expensive or more comprehensive way to avoid complicated, cumbersome and often costly legal issues.

 

For more information about your real estate and probate matters, please contact firm partner, Michael J Posner, at 561.594.1452 or mjposner@warddamon.com.

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