Do we need to open an estate / probate in Florida

[pandaman]

My step dad recently passed away in Florida, without a Will. He has 3 children from a previous marriage.

He was married to my mother for the past 20+ years and they lived in Florida. My mother has 1 child from a previous marriage (me).

My mother told me her name is on all real estate deeds, vehicle titles, bank accounts etc.

Does she automatically become sole owner of everything?

Do we need to open an estate or can we bypass probate since she is listed on all deeds and other paperwork?

Thanks in advance.

 

[Zigner]

A lot has changed in your life since 2018. In 2018, your mother had passed away 3 years prior without having remarried, leaving you and your two siblings as the beneficiaries of her estate.

https://forum.freeadvice.com/threads/anti-lapse-statute-in-new-york-state.648123/

Sharing of accounts is frowned upon as many (most, perhaps all) of the advisors rely upon a review of your past history when answering questions.

 

[adjusterjack]

Do we need to open an estate or can we bypass probate since she is listed on all deeds and other paperwork?

Please understand that I have no first hand knowledge of Florida estate law. What I am presenting is information I found on the internet. There is no guarantee that somewhere along the line your mother won't have to go to court over her husband's estate.

The word "listed" means nothing.

You would have to determine how the names were "listed."

With regards to home ownership, read about the different types of home ownership and the consequences of each.

The Complexity of Joint Property Ownership in Florida - South Florida Law, PLLC (southfloridalawpllc.com)

The deed must specify Joint Tenancy with Right of Survivorship. Without those last three words the husbands interest does not pass automatically to the wife and his heirs can seek a share.

For the car there is this:

82152.pdf (flhsmv.gov)

For bank accounts there is this:

What Happens to Joint Bank Accounts When One Dies in Florida? - Jurado & Associates, P.A. Your Trusted Florida Probate Lawyers (305) 921-0976 Romy@juradolawfirm.com (yourfloridaprobatelawyer.com)

 

[Taxing Matters]

Evidently your mother died before your step father did. Her estate should have sought out all her assets, including her share of jointly owned property, for distribution to her beneficiaries or heirs. If her estate did not do that, it's possible that it's too late to do that now. You aren't entitled to any of your step father's assets unless he left a will giving you something. If there are any assets your mother's estate should have claimed but didn't time is not on your side to fix it, especially now that your step dad has died and his estate will take charge of any assets it claims as his, and once distributed it can be hard to get back. You and your siblings should have sought out an estate attorney to handle your mother's estate back when she died unless someone else, like her husband, already had taken up that task. If there was an estate and it's now closed, you'll likely find it's too late now to raise any objections to how her estate was handled. Bottom line, I recommend you consult an estate attorney ASAP. If there is still any possibility to claim anything for your mother's estate, that door won't be open much longer.

 

[adjusterjack]

Evidently your mother died before your step father did.

Pandaman appears to have referred to his mother in the present tense. As in still alive.

I got that from these two sentences.

Does she automatically become sole owner of everything?

Do we need to open an estate or can we bypass probate since she is listed on all deeds and other paperwork?

 

[pandaman]

My husband opened this account several years ago and I didn't think it would be an issue to post my question here. Sorry for the confusion.

I have more info. Today I learned that my mom and step dad purchased the house together, after they were married. And the deed which I found on the county's web site is a warranty deed, not a Joint Tenant with a Right of Survivorship.

My biggest concern right now is Florida Statute 732.102 which says his kids can come after 50% of the house which effectively means my mom has to sell the house and move.

Does anyone know if that sounds possible or is my mom protected because they bought the house together and her name is on the warranty deed?

Can anyone offer an opinion?

Thanks again.

 

[adjusterjack]

I have more info. Today I learned that my mom and step dad purchased the house together, after they were married. And the deed which I found on the county's web site is a warranty deed, not a Joint Tenant with a Right of Survivorship.

A warranty deed is only a type of deed, not a method of ownership.

You have to read how the names and ownership designation appear on the deed.

My biggest concern right now is Florida Statute 732.102 which says his kids can come after 50% of the house which effectively means my mom has to sell the house and move.

No. It doesn't say that at all. Did you read it?

Statutes & Constitution :View Statutes : Online Sunshine (state.fl.us)

A property owned as joint tenants with right of survivorship goes directly to the surviving owner. It does not become part of the decedent's estate.

Get a copy of the deed and read it. I can't emphasize that enough.

And urge your Mom to consult an attorney and not rely on what you get off the internet. I can be wrong, you know.

 

[pandaman]

A warranty deed is only a type of deed, not a method of ownership.

You have to read how the names and ownership designation appear on the deed.

The deed is a warranty deed and it lists the buyers as "'step dad's name' and 'my mom's name', his wife".

It does not mention Joint Tenant with a Right of Survivorship.


No. It doesn't say that at all. Did you read it?

Yes, I read the statute. Paragraph 3:
3) If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, one-half of the intestate estate.

Doesn't this mean my step dad's kids can open probate and claim 50% of the house?

Or, since they were married when they purchased the house, they are Joint Tenants by default?


Statutes & Constitution :View Statutes : Online Sunshine (state.fl.us)

A property owned as joint tenants with right of survivorship goes directly to the surviving owner. It does not become part of the decedent's estate.

Get a copy of the deed and read it. I can't emphasize that enough.

And urge your Mom to consult an attorney and not rely on what you get off the internet. I can be wrong, you know.

 

[Zigner]

Florida has something called "Tenants by the Entirety" which functions in a manner very similar to the "right of survivorship" described above. The deed language described by @pandaman may be sufficient to establish this form of ownership and should be reviewed by a Florida attorney for clarification/verification.

 

[adjusterjack]

The deed is a warranty deed and it lists the buyers as "'step dad's name' and 'my mom's name', his wife".

It does not mention Joint Tenant with a Right of Survivorship.

since they were married when they purchased the house, they are Joint Tenants by default?

Yes.

From the link I posted earlier:

"Joint Tenancy
In Florida, married couples are automatically said to be joint tenants in their property of residence. If expressly stated on the deed, other concurrent owners can enter into a joint tenancy agreement as well. Like tenants in common, a joint tenant is permitted to sell their share of the property. Joint tenants differ from Tenants in Common in that they always own equal shares of the property meaning that they do not have the option of assigning different stakes to each property owner. A joint tenancy setup does not avoid having to go through the Florida probate process. Upon the death of one joint tenant, the property can be inherited by the heirs of the joint tenant(s) or the beneficiaries specified in the last will and testament. To bypass the involvement of Florida probate court, the interest must be established as joint tenants with the right of survivorship."

Doesn't this mean my step dad's kids can open probate and claim 50% of the house?

Yes. And possibly whatever else your step-dad shared ownership in.

You Mom would be wise to get a probate attorney and open probate herself so she has control over what happens.

 

[pandaman]

Yes.

From the link I posted earlier:

"Joint Tenancy
In Florida, married couples are automatically said to be joint tenants in their property of residence. If expressly stated on the deed, other concurrent owners can enter into a joint tenancy agreement as well. Like tenants in common, a joint tenant is permitted to sell their share of the property. Joint tenants differ from Tenants in Common in that they always own equal shares of the property meaning that they do not have the option of assigning different stakes to each property owner. A joint tenancy setup does not avoid having to go through the Florida probate process. Upon the death of one joint tenant, the property can be inherited by the heirs of the joint tenant(s) or the beneficiaries specified in the last will and testament. To bypass the involvement of Florida probate court, the interest must be established as joint tenants with the right of survivorship."



Yes. And possibly whatever else your step-dad shared ownership in.

You Mom would be wise to get a probate attorney and open probate herself so she has control over what happens.

Thanks. Its starting to be clear and my fears seem to be justified.

 

[LdiJ]

Thanks. Its starting to be clear and my fears seem to be justified.

What is your fear? You are being very cryptic so the advice you are getting may not be totally accurate. On top of that, your first post seems to indicate that your mother is still living but your posting history seems to indicate that she died some time ago. Of course the advice wouldn't even be remotely the same for both scenarios.

 

[Zigner]

What is your fear? You are being very cryptic so the advice you are getting may not be totally accurate. On top of that, your first post seems to indicate that your mother is still living but your posting history seems to indicate that she died some time ago. Of course the advice wouldn't even be remotely the same for both scenarios.

The poster is using the same account as a prior poster. The situation posted in this thread is a different one from that posted in the earlier thread.

 

[Zigner]

Yes.

From the link I posted earlier:

"Joint Tenancy
In Florida, married couples are automatically said to be joint tenants in their property of residence. If expressly stated on the deed, other concurrent owners can enter into a joint tenancy agreement as well. Like tenants in common, a joint tenant is permitted to sell their share of the property. Joint tenants differ from Tenants in Common in that they always own equal shares of the property meaning that they do not have the option of assigning different stakes to each property owner. A joint tenancy setup does not avoid having to go through the Florida probate process. Upon the death of one joint tenant, the property can be inherited by the heirs of the joint tenant(s) or the beneficiaries specified in the last will and testament. To bypass the involvement of Florida probate court, the interest must be established as joint tenants with the right of survivorship."



Yes. And possibly whatever else your step-dad shared ownership in.

You Mom would be wise to get a probate attorney and open probate herself so she has control over what happens.

I don't believe that the property is held as a "joint tenancy." I believe that the property is held as "tenants by the entirety," but this should be reviewed by an attorney. If it IS held as TBE, then probate is not necessary for the property to transfer to the surviving spouse.

 

[pandaman]

What is your fear? You are being very cryptic so the advice you are getting may not be totally accurate. On top of that, your first post seems to indicate that your mother is still living but your posting history seems to indicate that she died some time ago. Of course the advice wouldn't even be remotely the same for both scenarios.

The first post from several years ago was posted by my husband and is not related to my recent post. Didn't mean to confuse anyone.

My fear is that my step dad's kids own 50% of the house and can potentially start probate and make my mom sell her home of 30+ years.