Below is a summary of the more common ways that property is transferred in the state of Florida when someone dies.
Somebody just died leaving you an interest in a piece of property. To reclaim your interest in the property you must prove that you own it by documenting the transfer from the estate of the decedent to you. The procedure involved varies depending on the interest held on the property by the decedent, and on many other factors.
Joint Tenancy with Rights of Survivorship
When two people own a property as joint tenants with rights of survivorship, each one of them owns an undivided interest in the property. When one owner dies, his or her title passes automatically to the surviving owner. However, the instrument creating the joint tenancy must explicitly provide for the right of survivorship. If decedent and you owned the property as joint tenants with right of survivorship, then the real property is automatically transferred to you. To reclaim your interest in the property, you just need to file with the clerk of court the decedent's death certificate.
Tenancy by the Entirety
This is a special form of joint ownership available only to married couples. A property held in this manner does not belong to one spouse individually; each spouse owns the property as a whole. Consequently, the property passes automatically to decedent's surviving spouse if it was owned as a tenancy by the entirety.
Tenancy in Common or Single Ownership
Probate is necessary if a person dies owning anything in his or her name individually. Probate is a court-supervised procedure in which the assets of the decedent are identified and gathered to pay decedent's debts and to be distributed among the decedent's heirs or beneficiaries. The following steps illustrate the distribution process of the property through probate:
1. Probate is opened.
2. Court appoints a personal representative (PR).
3. PR can use decedent's estate to pay for the costs involved in the probate procedure.
4. Court determines if the property is homestead (not subject to the claims of creditors) or non-homestead (subject to the claims of creditors)
5. PR notifies and pays decedent's creditors. If the property is non-homestead the property may be available to pay creditors' claims
6. PR distributes decedent's remainder assets to decedent's beneficiaries or heirs.
- If decedent died with a will: You will receive a deed naming you as an owner of the property devised to you under decedent's Will.
- If decedent died without a will: All decedent asset's will be distributed as stipulated in Florida Statutes section 732.102, 732.103, 732.104. You will receive a deed naming you as an owner of the property you are entitled to under Florida law.
7. Record the deed in the real property records of the county where the property is located.
Ancillary administration: It is the administration of a decedent estate in a state other than the one in which he or she lived. Ancillary administration might be needed when the decedent died living property in Florida and a domiciliary probate for his or her estate has been commenced in another state. To start this process, file a petition in the circuit court where the decedent's property is located. You must attach an authenticated copy of each of the following original documents:
- The foreign will.
- The petition for probate.
- The order admitting the will to probate appointing the personal representative.
Keep in mind that authenticated means that each copy must have a court seal from the court where the original document was filed stating that the copy is an authenticated copy of the original.
SEEK ASSISTANCE FROM AN ESTATE PLANNING ATTORNEY
An estate planning attorney can discuss with you the options you have to dispose of your property avoiding probate. Moreover, an estate planning attorney can assist you in the process of transferring the property from the decedent to the person entitled to it. For an estate planning attorney in Florida call the Law Office of David M. Goldman PLLC at (904) 685 - 1200 or click the "Contact Us" tab at the top of the page.