How to Legally Sell the Property of a Recently Deceased Family Member
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People who inherit real property from their deceased loved ones often do not understand the process of how to move forward to legally sell the property. The process can be confusing, particularly when dealing with non-homestead property, and what steps need to be taken depends on how the property was inherited. Real estate can be inherited by deed, by will, by trust, or if the decedent passed away without a will, the inheritance process will be determined by the Florida Intestate Statute. However, it is important to understand that in order to sell the property, you will often need a court order from a Florida probate court authorizing the sale.
Deed, Will or Trust and the Lengthy Probate Process
The most common means of inheriting property is through a deed. If your spouse is the person who recently passed away, and you’re both shown on title as co-owners of the property, then there is nothing that needs to be done in order for you to sell the home. Florida law only requires that the death certificate of the decedent be recorded at the time the property is transferred to confirm that the surviving person on title has the right to sign the deed.
Real estate is often handed down through a person’s last will and testament when he or she passes away. In order to legally pass down real estate through a will, the decedent must have sole legal ownership of the property for the transfer to be effective. Simply providing a copy of the will showing the intended transfer of real property to the county clerk of court is not enough to legally effectuate the transfer. There will need to be a court order to complete the transfer, and that will mean opening a probate.
Probate is a court proceeding filed in the county in Florida where the deceased person last resided. There are two types of probate for Florida residents: formal and summary. Which type of probate depends on the size and type of assets owned by the decedent at the time of his or her death. Regardless, the probate process required specific legal hurdles to be cleared prior to allowing for the sale of the real estate. It is important to understand that this process will take months, so patience is key. Among other procedural steps, the estate must clear the Notice to Creditors period (up to 120 days) before the court will consider a petition to convey the real estate. During this time, the upkeep of the property should continue until the court grants an order authorizing the sale.
What About Inheritance and Sale of Homestead Property?
One major advantage of living in Florida is protecting ones home from judgment creditors through the Florida Homestead Act found in Article X Section 4 of the Florida Constitution. An individual’s homestead is also exempt from the Notice to Creditors period that other real estate is subject to when filing a probate. In other words, the homestead is not subject to creditors. Because of this, many surviving family members assume they can freely sell the homestead of their deceased parents, since they know it is not subject to any such claims. Title companies, however, will not insure the sale of the decedent’s homestead unless the title underwriter can be certain that the property was the legal homestead of the decedent entitling it to the protection from judgment creditors.
Accordingly, the personal representative of the decedent’s estate will often still need to obtain a court order confirming that the property to be sold was in fact the decedent’s homestead. Obtaining a court order requires opening of a court proceeding, so probate may not always be avoidable. The heirs can petition the court to issue an Order Determining Homestead Status, which are routinely granted when family members are seeking to sell property of their deceased family members. This order ensures that the property is exempt from unknown claims and provides the reassurance to the title company that the title is insurable.
Inheriting real estate can be confusing and complicated. Regardless of whether you intend to sell or keep the recently inherited property, it is crucial that the proper legal steps are followed in order to ensure title is transferred legally. Do not be surprised if this is not a quick process. And as always, I strongly advise you to consult a real estate attorney should you become the beneficiary of a piece of real estate upon the death of a loved one.