Florida Probate Required to Change Home Ownership?
 

A friend in Maryland has been having difficulty for several years trying to transfer title of real estate located in Indian Lake Estates, Polk County. Original owners (parents) passed many years ago. She claims she has given the County all the documents requested over the past several years, but now the County has advised her any changes to title requires Florida probate. Can anyone recommend a lawyer or offer advice on what is required or where to start on getting title transferred? Any help or suggestions are appreciated, thank you.

I had the same problem in Maryland. I had to go through probate in order to sell my mother's house. This is because a title company would not accept a will as proof to issue a new clear title to the house. This makes sense because they have no way to know that the will is valid, or that it is the most current will. I did the probate myself and it was very easy. An attorney wanted to charge me $4,500 for what took me about an hour of actual work. Note that they will change the title for a vehicle with just a will, but not a house. Good luck.

That's the dumbest thing I've ever heard. Isn't that the point of a will?

No. A will is a private document that stays private unless it is probated by a court. If the state changes the title of real estate based on a will, how do they know that there is not another will? Someone buying the house could not get a clear title because the title search company would not accept or validate a private will. The probate process requires that the estate be advertised and any creditors have a time limit to make a claim against the estate. The court appoints an executor who can sell assets on behalf of the estate.

So the gov't controls a private family's assets? Yeah, that doesn't sound shady at all. And of course the courts get their cut. Sounds like the courts and not honoring (over turning) living wills.

So anyone who passes and has a just will has to go to probate? Thank goodness we have trusts and beneficiaries established.

Correct. If the house is owned by a trust, the surviving trustee can take control of the property, you may not need probate.

The gov isn't controlling the asset, they are protecting it from fraud and abuse.

Even though my husband was an only child and the only heir in the will, it had to go through probate since my MIL had not put his name on the deed. The attorney took 2% of the selling price of the house as her fee. That is standard in Florida. Took 4 months to get clear title in Polk county.

Every one reading this, my advice……
Set up a trust.

Obviously that’s not working with all title scams around United States.

IMO Governments/states/lawyers likes to steal personal property especially when death has occurred on taxable estate income. A sole son or daughter with death certificate in hand should be able to transfer title. But, who writes law? lawyers and state want their guaranteed welfare money. Now shall we talked about inheritance tax?

Get a "Lady Bird Deed". Automatically goes to designated inheritance. Only several states have Lady Bird Deeds, Florida is one. Title attorney will do it.

Florida Lady Bird Deed
 

I did it myself. I found the required form online. I filled it out, signed it, and had it notarized. Then I took it to the Sumter County Clerk's office and filed for a small fee. No attorney (and fee) needed. My only heir is my son. After I die, all he needs to do is take my death certificate to the Sumter County Clerk's office and pay a small fee.

Example of the form: Just a moment...

The purpose of filing deeds and proving that a will is, in fact, the last will and testament of a deceased real estate owner has been in place in England and the USA for over a thousand years. The purpose is to establish and maintain records that clearly and unequivocally establish a “chain of title” that anyone can follow to identify the true owner of real property. Any document, such as a “private will”, whatever that is, that is not proven to be the deceased’s last will and testament and recorded in the office of the local clerk of court and would break the chain of title.

Similarly, sale of real estate by a surviving child of the previous owner without probate and recordation of a court order establishing that the child has the authority to sell the property would not preserve the chain of title.

Real estate is unique and always has been.

BTW, Florida requires that any probate proceeding involve an attorney. There no such thing as a DIY estate settlement in Florida.

A good friend of mine who is now deceased went thru this. He was in New Jersey and an Aunt in South Florida died. An attorney got ahold of probation the estate. He ripped off the estate for thousands. My friend hired an attorney in New Jersey and was able to stop the ripoff. The South Florida attorney ended up fleeing to Canada. There is something called a "ladybird deed" in Florida. It is a deed that stipulates transfer upon death to the named heir. It is recorded and when you pass the heir simply has to go to courthouse with a death certificate and they will transfer the property to them. It's a good way to avoid probate.

Tell her to Google ‘Affidavit of Heirship’ and name the relevant state. An Affidavit is acceptable for non-court transfer of real estate in most states. She would state her relationship and the deceased family history. It normally requires supporting Affidavits by two other people who knew the family line and state how they know the family, state the relationships within the family & confirm the original Affidavit. Those Affidavits get filed in the deed section of the County & no Probate is required for that Real Estate.
An alternative is an enhanced Lady Bird Deed to be completed by one who wants to state in the property deed the recipient of the real estate after owner’s death. It can be used by husband & wife stating who (or plural) they are transferring their real estate to after the death of the last of the two spouses (death of surviving spouse).
Using that ‘enhanced deed’ & putting Pay On Death (POD) on your bank accounts and a Transfer on Death Death on investments, and you are set. No probate and many states have DMV forms (Affidavit of Heirship for a motor vehicle).
Trusts are as good as the understanding, honesty and care of the Trustee. If you use that, have them include a Trust Protector. Be aware, they can be decanted by the Trustee without oversight, and often assets are missed & not part of the trust and trustees often fail to complete annual audits. It is also a closed form of transfer, so is vulnerable to changes not intended by the creator. Decanting (move assets to another trust) is fairly easy for a trustee to do, without knowledge of the Trustor; a Trust Protector is an available safety feature.

That’s why my estate lawyer recommended a trust for my house, bank accounts , life insurance.

I did

Avoiding those attorney's fees is why it's recommended that you put you house in a trust.It's much cheaper than the probate attorney's fees.

If you have a Lady Bird deed or joint ownership, you can avoid a trust and probate.

I am going through this with my mother passing. Please everyone look at every account you have from checking to banking to retirement. Make sure it has beneficiaries listed and has TOD on it or they are joint account. Make sure you have a checking account with enough money in it for burial and last minute medical expenses that is joint owned by a trusted child or someone that can access the money immediately and not have to wait for death certificates. Of course, ultimate word dare is trusted. You can avoid a probate with a trust. I don’t know about the ladybird deed. I will be looking into that soon too. My mother made a mistake of trusting the click on her last account that said copy beneficiaries from previous account.. The beneficiaries did not go over. Now those accounts have to be probated and yes, there is a substantial fee that will go to the state based on the amount in the account. Don’t trust attorneys either. Double check as her trust didn’t have successors and trustee set up the way she actually wanted it. Call your financial institutions and ask what will happen to the trust account if you pass and what they will be looking for to see who controls it.

I also found out that in my home state the executor of your will has to live in the state or you have to find somebody else to represent the estate.

You don’t want someone else on the deed but you should make the deed with a remainderman. If your husband died before MIL or did something scary like file bankruptcy or is sued for say an auto accident causing a large claim, they could go after MIL’s home.

the remainderman or a ladybird deed allows the house to transfer upon MIL’s death without probate and supersedes a will. there are differences in the two so ask the attorney who will recreate the deed for the one you want.

I also have all our accounts from checking to IRAs to investment accounts with a beneficiary. So upon spouse and myself death 98% of our estate would transfer outside of probate.

When we moved to Florida, we had a new will made splitting assets between our two children. The house is in a trust and we checked and rechecked that after the surviving spouse, the kids are named beneficiaries on all accounts. Attorney said that would avoid probate. MIL didn’t have to pay property taxes since FIL was a disabled veteran and she was untrusting of doing anything that would jeopardize that. It’s difficult to convince someone in their nineties that putting the house in a trust was safe. Not paying taxes overrode anything and pressing her would make us appear greedy. Her lawyer did her a disservice.

If your MIL did not have to pay property taxes all those years, you shouldn't have too much concern that she didn't blow money on having a trust designed. She came out just fine financially on that deal.

As far as your own estate, I don't know if this is true in Florida but if any asset pops up of which you hadn't planned or were unaware of or appeared after you were unable to handle because of health, age, etc., your estate will be thrown into probate.

Per AI: Generally, assets held in a trust can bypass probate. However, there are circumstances where assets in a trust, even if properly established, may still require probate. These typically occur when there are issues with how the assets were transferred to the trust, or if certain assets were not properly titled in the trust's name

There is nothing better than consulting a qualified local attorney. Certainly not soliciting advice on the web. However, an in-between option of educating one's self by viewing the informative videos of a qualified local attorney is better than nothing. May I recommend you look at any of these relevant informative videos:

Pittman Law Office - YouTube

Again , Do a "Lady Bird Deed" even though you have a trust. DIY as mentioned by John, download the form, notary stamp and file with county.

Simply put everything you can in a Revocable Living Trust.

I don't know about England, but I have a will and it is not recorded with any Government entity. When I prepared my latest will, I had a prior will that I prepared myself using online software. And, as I understand it, I can prepare a new will anytime I want that would make the old will null and void. So, it seems impossible to prove that a will is the last will that was prepared.

As suggested earlier, talk to your attorney. Some of this information is incorrect in many states, wills are not required to be filed with the local clerk of court to be legitimate.

Correct. And, I don't think there is even a legal process to file a will with any Government entity. Some Government offices have a depository for the safe keeping of a will, but this does not establish any legitimacy to the will, or prove that it is the last will prepared.

Part of the probate process is to file three notices in the newspaper. They include the name of the deceased and agent who is probably a named heir. That gives creditors an opportunity to make a claim or someone to contest the will. You’ll notice them in the Daily Sun.

Yes. The biggest advantage to the probate process is that, when the court closes the estate, the creditors are permanently shut out of any future claims against the estate. Without probate, you never know when a creditor will show up with a claim.

Thank you for the form download. I was going to use a lawyer for the LB Deed soon and the price was quoted @ $475. So I will do it myself as you and others have done.

Ladybird Deed
 

As I understand it, a ladybird deed allows real estate transfer to whomever is designated in that deed. Does it also cover anything else, such as bank accounts, stocks, furniture, motor vehicle, etc.?

No. A Lady Bird deed only covers the real estate. But most financial accounts can be set up as TOD (transfer on death) so that the funds automatically change ownership at death, with no need for a will or probate. I think you can retitle a vehicle using a will and a death certificate, which is more lenient than with real estate. Personal property can be transferred with just a will. Obviously, the easiest way to ensure transfer of any property is with joint ownership, but that is sometimes not desirable because a joint owner can be sued for the property.

Note that some posters have said that they prepared a Lady Bird deed themselves. Personally, I would rather pay a title company to retitle my house using a Lady Bird deed, and for them to do the recording. It is worth the cost.

My husband passed away and our home in Sarasota county was in his name. It was required that a lawyer appear in court to probate and transfer ownership to me as per his will. Hire the right attorney who specializes in this because the state of Florida will try to charge you a hefty tax on the appraised value. It can be very costly. I now have a Ladybird deed so that my kids don't have to do this. Another name for a Life Estate Trust.

Who required you to hire a lawyer? If this is a law, can you provide a source or a link? I don't know about Florida, but I probated a will in Maryland and did not hire a lawyer. Also, are you referring to a "tax" or an attorney fee. If it is a tax, the attorney gets nothing. All attorneys will try to charge a hefty fee for their services, but their fees are negotiable.

Use a TOD (transfer on death) that is filed with county. No trust or probate needed, just death certificate.

Florida does not allow TOD for real estate. That is why you need a Lady Bird deed.

Can you post a link to a county office that handles the filing of TODs for other property? I have never heard of this process.