What happens to a house during probate in Florida?

The question we get all the time is “why can’t I just sell the house without going through probate ?” And trust me, we wish just as much as you that we could purchase the home without the hassles of probate. Unfortunately, Florida is one of those states that requires all property owned by a now deceased individual to pass through probate in some form or another, with very few exceptions (which technically are just legal techniques to transfer a property prior to death of the decedent or where title to the property is held jointly rather than as an individual). Unlike states like Texas or North Carolina where you can do an affidavit of heirship and bypass the probate process, selling a probate home in Florida is just not that easy for any of us 🙁 In this article we’ll cover how to get the home in and out of probate in the quickest way possible and outline the formal process of what exactly happens to the “house” during the probate process.

What is Probate?

Probate in Florida, is the legal process that requires a valid Florida will and is used to “close out the estate” of a now deceased individual who died while owning property. It is important because it sort of does a transfering of the assets  (houses, cars, bank accounts, stocks, etc.) AND liabilities (mortgages, credit card debt, other debts, etc.) of the now deceased person to that person’s “heirs.” 

Heirs is a legal word for the people who are legally entitled to certain property from a person’s estate. Who is an heir in Florida can be different from who is an heir in another state. More specifically, who is an heir would depend whether we’re talking about probate or intestate transfer of property:

•  In a probate, which remember means there must have been a valid will, with a few exceptions, the only heirs who’d usually inherit anything are those named in the will. Heirs are awarded the property they are entitled to only after the accounting for the estate has been done and the debts have been settled, then the heir would be awarded this property they were entitled to receive.
• Now if we’re talking about an intestate transfer of property the heirs are defined by Florida Statutes and are considered in the specific order as determined by law. It is quite confusing and we’ll explain it here quite simply (and in order of priority) but this flowchart might also help.
  1. If, surviving spouse 
     • And no descendants (kids is the easiest for our purposes) then surviving spouse get 100%
     • If descendants
       • Depends of whom the descendants are
         • If all were also descendants of the surviving spouse and surviving spouse has no other surviving descendants, then surviving spouse gets 100%
         • If one or more surviving descendants are not lineal descendants of surviving spouse, then surviving spouse gets 50%
         • If all surviving descendants are also descendants of surviving spouse, but surviving spouse has other descendants not of the deceased then surviving spouse gets 50%

If no surviving spouse or surviving spouse does not get 100%, then the rest of the estate goes to the following heirs

1. Descendants of the decedent (kids, kids kids, etc.) 100%
2. If no descendants , to decedents father and mother equally, or the survivor of the two 100%
3. If none of above, then to the brothers and sisters of decedent AND the descendants of any deceased brothers and sisters
4. If none of above, 50% to “kindred” of the father and 50% to “kindred” of the mother (kindred just means that family line)
   • Grandfather and grandmother equally, or to survivor 100%
   • If no grandfather or grandmother, to uncles and aunts 
5. If no kindred of either side of family, then 100% to kindred of the last deceased spouse of the person who died as if this spouse survived them (so start from the top of this list again for that spouse)
6. If still nothing, then the estate would go to the State of Florida and the funds will be deposited into the Florida State School Fund.

How does probate work in Florida?

First off, whether a probate takes place or not will depend if there was a valid will. If no valid will was signed by the decedent then a process known as intestate transfer would take place. Oftentimes people will confuse the legal name for interstate probate (which is not a real thing) it is intestate probate. 

Now lets say an estate does need to pass through probate:

Step 1- it will either be a summary administration (which can be completed in 4 weeks) or a formal administration (could take 5+ months). 

Step 2 – The estate must notify any creditors of the estate, let the notice period pass and then take an inventory of the assets (property, bank accounts, etc.)

Step 3 – Settle any debts and verify inheritance to the names heirs from will are not contested

Step 4 – Court order legally changing ownership to the heir or heirs named in the will

Do all FL houses go into probate when the owner dies?

There are a few wrinkles where the “assets” might bypass probate and it does not matter whether there was a will or not because of the way the property was owned at the time of death (what it says on the deed). In Florida, there is very specific language on the property deed that can make the property ownership things such as joint tenancy or joint tenancy with right of survivorship. Florida, also does not recognize transfer on death deeds nor community property law. If property is held as a joint tenant, the descendants (kids) of that joint tenant generally would stand to inherit the ownership BUT if its held as joint tenant with right of survivorship only the surviving individual of those individuals named in the deed will take over 100% ownership of the property upon the death of the others who are named. 

Another wrinkle that would transfer property without probate would be a particular type of trust such as a living revocable trust, which is when someone names a beneficiary of their property that will only take effect upon their death and can also be amended during their lifetime. If an individual creates an irrevocable trust then the trust cannot be changed during their lifetime by anyone other than the trustee. In either situation, upon death of the person who created the trust the property would pass to the beneficiaries without the need for probate.

What is the most common form of ownership for a house in Florida?

There are 4 common types of home ownership in Florida: (1) tenants in common (2) joint tenants & joint tenants with right of survivorship (3) sole ownership (4) tenancy by the entirety.

Tenants in common

Florida allows multiple individuals to own a property with unequal percentage of ownership. So it is possible for an individual to own 39% and another to own 61% of the property and title would be held as tenants in common.

Joint tenancy

For joint tenancy, it’s basically the same as tenants in common except that all individuals must own the same percentage of the property. Unless, it is explicitly stated as joint tenancy with a right of survivorship it would be understood to be owned as joint tenants. The right of survivorship exception would cause the property to transfer to the surviving individuals equally upon death of one of the owners.

Tenancy by the entireties 

This is Florida’s version of “community property” and how a married couple would hold title to a property. One cannot sell or otherwise do anything with the property without the other. This ownership also follows the joint tenancy right of survivorship where the surviving spouse will inherit the property ownership 100% (subject to a few exceptions below)

Sole Ownership

Well, this is about as easy as it sounds. The property is 100% owned by a sole individual and upon their death the property would need to pass through probate.

Pro tip: Whether the property was the homestead property of the decedent can often make or break some of the funky Florida laws regarding who would stand to inherit the property. Additionally, the specific language on the deed makes all the difference in the ownership and can even impact who stands to inherit the property.

What happens to a FL house during probate: Three Common Scenarios

Home is Transferred to Heirs Named In The Will

So whether an estate is handled intestate or not is determined by whether there was a valid will. If there was a valid will, a person is said to have died testate. The next step would be the estate is filed with the Probate Court, which is the court system that solely handles estates, wills, executorship, inheritances, conservatorships, etc. Unfortunately, yes you do have to actually go to court to gain the legal authority to sell property if title was not legally transferred upon the death of the individual. In the probate process the court will name an executor (called a personal representative by Florida law) of the estate, which is the person who will be responsible for closing out the estate by paying off all debts and settling the transfer of all assets to the beneficiaries (those heirs or individuals who are named in the will). Once the debts have been paid the judge will issue an order conveying legal title to the remaining assets into the names of the beneficiaries. Finally, the judge will “close out the estate” which releases all parties from any further liability.

Property is conveyed to surviving spouse, children, or next of kin in intestate probate

In an intestate probate that means there was no will and the property will pass according to Florida intestate laws we mentioned above. Whether the property we’re talking about is the homestead property of the person who died makes a big difference, as well whether the spouse was the only spouse of the deceased, whether they had any kids and if so whether the only kids they had were with each other. You see, Florida law seeks to keep within the family property so as to not leave a surviving spouse or child without a roof over their head. 

Let’s take a look at a scenario where a home was sold WHILE the home was in the probate process.

Holly was married to Billy. Billy and Holly had only 1 son and no other children, they were happily married for 20 years until Billy passed away. At this time Billy and Holly owned 1 home, the family home and it was their homestead. When Billy passed away the ownership was transferred 100% to Holly. Holly then became distraught and also passed away the next month without a valid will. In this situation the home had a mortgage remaining of $100,000 and the value of the home was $120,000 as it is. The son in this case would stand to inherit the property through the intestate laws and because he was not able to make the mortgage payments the court stepped in and ordered for the home to be sold while the home was going through probate to pay off the debts of the estate.

House is sold with Probate oversight by Executor of the estate

At this point you’ve probably got the hang of it and just want to hear a few more scenarios play out so you feel comfortable enough to fill out the form below and receive your offer (and personal evaluation of the situation and how to get cash in your pocket asap) Remember we don’t make any money either until we finally purchase the house.

So let’s run through a real life scenario that happened in Fall of 2022 in Citrus Springs, Florida. We received a call from a lady (we’ll call her Samantha not her real name) who’s mother passed away recently and left behind a house and had a will that named Samantha as the one to inherit the property. Samantha did not live in this home or even live in Citrus Springs for that matter and when she went by the home she found that it was basically falling apart. She had inherited a home in very poor condition and didn’t know whether she should make the repairs on this inherited home or just sell it as is. Samantha didn’t really have the money saved to pay the $34,000+ in renovations needed to bring the home up to merely liveable conditions, let alone get it up to the 2022 standards. Samatha was tasked with needing to sell a house in poor condition and that home go through probate at the same time. We made her an offer she liked and then within 24 hours we’d connected Samantha with our attorney to gather all the required documents, filed the probate within 8 days and ultimately we were able to do a summary administration probate putting cash into Samantha’s bank account within 75 days. 

IMPORTANT: In the Above H3 Sections, please look to reference at least 1 outbound link to the URL below. It has a list of all FL Probate laws curated in one spot and Google Looks on this URL favorably.

• Look to include links to: https://codes.findlaw.com/fl/title-xlii-estates-and-trusts/ to build up authority for the article.

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