frequently asked questions
Do I Need a Lawyer for Florida Probate?
Yes, in almost all cases you will need an estate lawyer for Florida probate. Even when an estate lawyer is not required, formal administration has so many technical rules and pitfalls that it can be very frustrating for the non-lawyer. Florida's system is too complex for most personal representatives to follow without guidance, and the courts are not set up or staffed to provide probate legal assistance. In addition, judges in the state require probate documents to meet certain specifications and wording, the forms for which are not available online or even in most libraries. In other words, executors in Florida cannot count on the court clerk's office to guide them through, as they might in some other states.
What is the probate?
Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent's debts, and distributing the decedent's assets to his or her beneficiaries.
How Long Does the Probate Process Take?
According to the American Bar Association, the probate process can take 6-9 months after the probate case is opened. Of course, this can vary depending on various factors like disputes of the will.
Can I sell a house in probate in Florida?
​You can absolutely sell a house in Florida during probate. You can sell during probate – it even might be required to settle debts or resolve heir disputes. Selling an inherited house may even be necessary to settle estate debts, pay legal fees, or resolve disputes among heirs.
When Can the Personal Representative Sell the Property?
Before selling real property, the personal representative may have to gain court approval. The real property may have to be appraised by a professional. He or she may also be required to inform the beneficiaries of the sale and possibly obtain their approval. The personal representative signs the sales documents.
Is Florida homestead a probate asset?
Homestead property is protected from creditors upon death if you are a permanent Florida resident, and the homestead property is your primary place of residence. These properties are not protected by the Homestead law and may be considered a probate asset.
​How do Probate home sales work?
A home is sold in probate court when someone dies intestate or without bequeathing their property. When that happens, the state takes over and administers the property's sale. The court wants to be certain the property is marketed and sold at the best possible price.
What if the House Has a Mortgage?
It’s important to know if the home in question has a mortgage standing. If so you will need to continue to make payments on the mortgage during the process to avoid the home going into foreclosure. The bank wants to still be paid for the home or else they will foreclose, complicating the process even more.
If the home has no mortgage, then the process is a lot easier and no payments on a mortgage are required.
Can a bank foreclose on a house in probate?
Yes, a property can be foreclosed if the owner has passed away and ownership of the property is being determined by a Probate Court. Foreclosure can only be stopped by a state court lawsuit seeking an injunction to prevent the foreclosure (this is rare) or a bankruptcy filing. Generally the personal representative of the probate estate must use probate estate assets to keep the mortgage current so that ownership may be maintained of the property until it is sold or transferred to the new owner. As a general rule, banks do not want to own any property and will work with a family to help preserve the family ownership until the parcel can be sold and the mortgage paid off.
Do I need to come to court in Florida for probate?
Generally, no. Uncontested probate – where there is no dispute over the outcome of the case – will not require your presence in Florida. If an estate is contested, you may need to attend a hearing but your attorney may be able to appear without you. Phone hearings are also permitted in many cases.
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Disclaimer: The information provided by SFL Fast Home Buyers on this website page is for general informational purposes only. All information on the Site and our mobile application is provided in good faith, however we make no representation or warranty of any kind, express or implied, regarding the accuracy, adequacy, validity, reliability, availability or completeness of any information on the Site or our mobile application. Under no circumstance shall we have any liability to you for any loss or damage of any kind incurred as a result of the use of the site or reliance on any information provided on the site. Your use of the site and your reliance on any information on the site is solely at your own risk. We recommend consulting with an estate planner or an Attorney.
Sources:
http://www.realestatelawfl.com/probate-1
https://www.floridabar.org/public/consumer/pamphlet026/#1.%20WHAT%20IS%20PROBATE%3F
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