Buying a house in probate

[Marco Petit]

I found a house that an heir is really motivated to sell, but is in probate. I think I've heard that houses often can get sold before the probate is over. How do I go about this deal? His family also owns houses in other states and countries as well. Any advice?

[Kerry Baird]

The answer to your questions is "It depends."  

In our recent situation, my husband's mother passed away and he inherited her real property.  Her lawyer had arranged for her to use a "lady bird deed."  This helped my husband avoid probate of the property.  Once he received a death certificate, he went down to the county recorder's to have the certificate recorded.  Title passed to him directly.  Instead of a "quit claim deed" or a "warranty deed" the notes in the records say "certificate of death." From there, he had full rights to sell the house.  

I'm (hopefully) attaching two websites that have more information.  You may want to do this deal with the help of a real estate lawyer, rather than a title agent.  

http://info.legalzoom.com/transfer-real-property-a...

http://www.nolo.com/legal-encyclopedia/florida-pro...

"In Florida, there are three ways to settle an estate. Here’s an overview of each one, from the simplest and least expensive to the most complicated and costly.

A note about wills: Whether or not probate will be necessary, Florida law requires that anyone who has possession of a will must file it with the local circuit court within 10 days of learning of the death. If a probate court proceeding is necessary, the court will determine whether or not the will is valid.

Many assets of the deceased person may be able to go to their new owner without probate court approval. The most common kinds of nonprobate property are:

• Property held in joint tenancy by more than one person—for example, a house owned by a couple, or a bank account shared by more than one person
• Assets for which the person designated a beneficiary—for example, a POD bank account, a retirement account, or life insurance proceeds
• Assets held in a living trust

For a look at common probate-avoidance techniques, see our articles on “How to Avoid Probate.”

When the deceased person leaves very little behind, this process lets someone who paid for the person’s final expenses—the funeral and expenses of the last illness—be reimbursed from the assets of the estate. (Fla. Stat. 735.301.)

It can be used only when:

• the deceased person did not leave any real estate, and
• the only assets are either exempt from creditors’ claims or don’t exceed the amount of final expenses.

To request reimbursement, you file a form called “Disposition of Personal Property Without Administration,” which is available from the clerk of the court and on many Florida circuit courts’ websites. There’s a small filing fee; call ahead or check the court’s website to find out the exact cost.

The document must state how much you’ve spent, and you must document those expenses by submitting itemized bills and receipts for funeral bills and for medical expenses that were incurred during the last 60 days of the deceased person’s life. You must also state exactly which assets (a bank account, for example) you are requesting payment from. A certified copy of the death certificate must accompany the request. If there’s a will, it must also be filed with the local circuit court.

Summary Administration

This probate shortcut can be used by many Florida estates. It’s an option if either:

• the death occurred more than two years ago, OR
• the value of the probate estate—that’s all the property that would have to go through probate, so it excludes the nonprobate assets described above—is not more than $75,000.

To start this process, the person who was nominated in the will to be executor, or anyone who inherits property, files a document called a Petition for Summary Administration. The surviving spouse, if any, must sign and verify the petition. If any beneficiary doesn’t sign the petition, you must formally deliver (serve) that person with notice that you have filed the petition. (Fla. Stat. 735.201.)

In the petition, you state that the estate qualifies for summary administration, list the deceased person’s assets and their value, and state who inherits which assets.

The court doesn’t appoint a personal representative (executor or administrator) for the estate. Instead, the court, if it determines that the estate qualifies for summary administration, issues an order, releasing the property to the people who inherit it. You might use this court order to show a bank, for example, that you are the rightful inheritor of the funds in an account it holds.

Related Ads

Formal Administration (‘Regular’ Probate)

If the estate doesn’t qualify for a simpler method of administration, formal probate may be necessary. These proceedings begin when the executor nominated in the will, or another interested party, asks the circuit court to be appointed as personal representative of the estate. Generally, the probate proceeding takes place in the county where the deceased person was living at the time of death Beneficiaries and heirs (people who would inherit in the absence of a valid will) are given notice, so they have a chance to object.

The court issues a document called Letters of Administration, which gives the personal representative authority to settle the estate. If there’s a will, it must be filed with the court and proven valid. This may be done by having the witnesses to the will give statements, under oath, about its validity. Or, if the will is “self-proving,” it’s enough to submit the document itself. Under Florida law, a will is self-proving if the witnesses, when they watched the will-maker sign the will, signed a statement in front of a notary public. (Fla. Stat. Ann. § 733.201.)

Under the court’s supervision, the personal representative gathers and inventories assets, pays debts and taxes, and (eventually) distributes what’s left to the people who inherit it. The personal representative must submit a final accounting to the court, showing what the estate contained, how the assets have been managed, and the plan for distributing them to beneficiaries. Anyone who objects to the accounting can object in court.

After everything has been distributed, the personal representative files evidence (receipts) with the court, and asks that the estate be closed. The court issues an order closing the estate and relieving the personal representative of further responsibilities. Typically, the whole process takes six months to a year.

For more about formal probate, see the Florida Bar Association’s pamphlet on probate.

Probate Attorneys’ Fees

Florida is one of the few states that sets out, in its statutes, lawyers’ fees that are presumed to be reasonable for estates of a certain value. (Fla. Stat. Ann. § 733.6171.) The fee is based on the value of the assets that go through probate, plus any income they earn during the probate proceeding. The value of homestead property is not counted.

Here are the statutory fees:

• Value of estate up to $40,000: $1,500
• $40,000 to $70,000: $2,250
• $70,000 to $100,000: $3,000
• $100,000 to $1 million: $3,000, plus 3% of the value over $100,000
• $1 million to $3 million: $30,000, plus 2.5% of the value over $1 million
• $3 million to $5 million: $50,000, plus 2% of the value above $3 million
• $5 million to $10 million: $90,000, plus 1.5% on the value above $5 million
• More than $10 million: $165,000, plus 1% of the value above $10 million

These fees are only for “ordinary” services. Anything the lawyer does that isn’t ordinary—for example, handling a will contest or giving tax advice—is presumed to justify a larger fee. If a lawyer follows the fee schedule, the fee may be almost unrelated to the amount of legal work done. It’s the same amount of work to handle a $1 million brokerage account as it is to probate a $100,000 account—but under the statutory fee schedule, the bill for the million-dollar account would ten times larger.

Florida attorneys aren’t required to follow this fee schedule, and many acknowledge that it often leads to inflated attorney news. Especially if the estate you’re handling is greater than $100,000, be sure to find an attorney who will quote you a flat fee or work at an hourly rate."