You may be the surviving spouse or child of someone who died owning real estate in Florida. Whether you desire to keep the property or sell it, proof of transfer of ownership is often required. How property transfers after the owner has died may depend on how the deceased person acquired the property and whether or not she left a last will and testament.
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If two people own property as tenants by the entirety or joint tenants with rights of survivorship in the state of Florida and one dies, the other acquires title to the property. Property held in this manner generally bypasses probate. If you are the surviving co-owner, proving ownership may merely be a matter of producing a copy of the deceased owner’s death certificate. Also with survivor ownership, creditor's liens against the deceased co-owner do not generally continue against the property after his death and property passes to the surviving co-tenant free and clear of those liens.
If someone dies leaving a last will and testament and owning Florida property, she may have named you in the will as the personal representative, which is often referred to as the executor. Even though you may have been named as the personal representative, you must be appointed by court order to act in this capacity, and it is only then that you will be able to distribute property according to the terms of the will. Real property that is not needed to pay claims or debts against the estate may be distributed by the personal representative’s deed to those entitled to it. Recording this deed in the real property records of the county where the property lies provides proof of ownership change from the deceased person to her named beneficiaries. If the will directs or gives you authority to sell the property as the personal representative, generally, you may sign any deed conveying this to a third-party purchaser for the benefit of those under the will. You may also petition the court for the authority to sell it, if necessary or desired.
If someone dies without a will and they own property in Florida, his estate will usually be administered through the probate court to determine the distribution of the property. As a relative or other interested Florida resident, you may petition the court to be appointed as the administrator, or personal representative. If appointed, you will likely be required to post a bond with the court as security for faithful performance of your duties. As the personal representative, you may petition the court for an order that authorizes you to deed to the heirs, or sell the estate property and distribute the proceeds to the heirs. After you have obtained the order, you have the authority to execute a personal representative’s deed to the heirs or purchasers.
Some states, such as Texas and Mississippi, allow the recording of heirship affidavits as proof of property ownership -- particularly in cases in which the deceased's estate was not probated promptly after he died. In those states, a deed from the rightful heirs may pass title without having to go to probate court. In Florida, however, intestate estates generally must go through the probate court for a clear title to pass to subsequent owners.
References & Resources
- Law Offices of John F. Pippin, Jr. and Associates: Florida Warranty Deed
- The Probate Lawyer by Fortenberrylegal: Florida Tenancy by the Entirety
- Real Town, The Real Estate Network: Joint Tenancy
- American Foundation for Suicide Prevention: Surviving a Suicide Loss, A Financial Guide
- The Probate Lawyer by Fortenberrylegal: Can a Florida Personal Representative Sell Assets of the Estate?
- Online Sunshine: Search the Florida Statutes, 733.402 f.s.
- The Florida Bar: Probate in Florida Pamphlet
- The Probate Lawyer by Fortenberry Legal: Mississippi Heirship Affidavit
- LoneStarLandLaw: Affidavits of Heirship in Texas Intestacy Cases
- Jupiterimages/Polka Dot/Getty Images