FL Decedents

Tenancies by the Entireties

• Is T by E recognized? Yes
• How shown in grant deed? “A&B, husband and wife” or now as “A&B, a married couple”. Entireties presumed if two people take title who are married and no other tenancy is mentioned. Marriage at time of taking title can be proved by recording an Affidavit of Marriage.
• Unities required for validity? Statute eliminated need for straw man conveyance where one spouse already in title, other unities required between spouses. § 689.11, Fla. Stat. Baumgardner v. Kennedy, 343 So. 2d 1323 (Fla. 3d DCA 1977); Schuler v. Claughton, 248 F.2d 528 (5th Cir. 1957); Johnson v. Landefeld, 138 Fla. 511, 189 So. 666 (1939); 25 Fla. Jur. 2d Family Law § 406 (2004); FUND TN 20.01.06. Use caution when applying this to homestead transfers prior to 1-7-69 (effective date of 1968 Fla constitution).
• Record:
  • Death Certificate
  • Affidavit of Continuous Marriage by surviving spouse or family member

Joint Tenancies (with right of survivorship)

• Recognized? Yes
• Florida Statute Section 689.15 titled, Estates by survivorship provides:
  • "The doctrine of the right of survivorship in cases of real estate and personal property held by joint tenants shall not prevail in this state; that is to say, except in cases of estates by entirety, a devise, transfer or conveyance heretofore or hereafter made to two or more shall create a tenancy in common, unless the instrument creating the estate shall expressly provide for the right of survivorship; and in cases of estates by entirety, the tenants, upon dissolution of marriage, shall become tenants in common."
• How shown in grant deed? “ “A & B, as joint tenants with rights of survivorship”
• Must survivorship be expressly stated? Yes
• Unities required for validity? Yes
• Record ….
  • Death Certificate

Potential Community Property Interest – Record owner deceased

• Not recognized in Florida

Tenants in Common

• Florida Statute Section 689.15 titled, Estates by survivorship provides:
  • "The doctrine of the right of survivorship in cases of real estate and personal property held by joint tenants shall not prevail in this state; that is to say, except in cases of estates by entirety, a devise, transfer or conveyance heretofore or hereafter made to two or more shall create a tenancy in common, unless the instrument creating the estate shall expressly provide for the right of survivorship; and in cases of estates by entirety, the tenants, upon dissolution of marriage, shall become tenants in common."
• How shown in deed? "Joe Smith and Bob Jones" [if not marred to each other] creates a tenancy in common.

Non-probate options?

• Not available without express underwriting approval
  • Affidavit of heirship (when used) – Not Available in Florida
  • Judicial determination of heirs? Not used in lieu of probate, may supplement other information with underwriter approval
  • Recorded will? Not relied upon in lieu of probate.
  • Conveyance purporting to be from all heirs? Not relied upon in current transaction. It is good practice to include the recitation. Also a deed of record more than 7 years prior may be cured by F.S. 95.22 Discuss with underwriting before relying.

Probate In Florida

Definitions

• Testate means that the decedent had a Will.
• Intestate means that the decedent did not have a Will.
• Devise is a gift in a Will, and the beneficiaries in the Will are known as “Devisees”.
• Heirs. When the decedent does not have a Will, relatives of the decedent who inherit property according to Florida’s intestate laws are called “Heirs”. Devisees are Beneficiaries under a Will; and Heirs are Beneficiaries when the decedent does not have a Will. E. Beneficiary applies to both Devisees under a Will and to Heirs under Florida’s intestacy laws.

Why Do We Need Probate?

• Title Passes On Death. The decedent’s death is the event that passes title to the beneficiaries. F.S. 732.101(2), 732.514, and Title Standards 5.1 and 5.2. Based upon those statutory sections and the Title Standards, title passes automatically at the moment of death to the beneficiaries named in the Will, or to the heirs if there is no Will. Heirs are determined according to Florida’s intestate laws. See F.S.732.102 and 732.103 for Florida’s intestate succession.
• Why Is Probate Required. If title passes upon death, why is a probate necessary? Florida Statute Section 733.103(1) provides that: “[u]ntil admitted to probate in this state … the will shall be ineffective to prove title to, or the right to possession of, property of the testator.” Therefore, even though title passes immediately to the beneficiaries upon death, those beneficiaries will not be legally recognized until a probate has been filed.

Who Has to Sign?

• General Rule. Always require deeds from the beneficiaries and from the personal representative. When we do not know for sure whether the property was the homestead of the decedent, we treat the property as if it was the homestead of the decedent and require deeds from the beneficiaries; and we treat it as if it was not the homestead of the decedent and require a deed from the Personal Representative.

• Authority of Personal Representative. With respect to a personal representative’s authority to convey title, F.S. 733.608 provides that: “All real and personal property of the decedent, except the protected homestead … shall be assets in the hands of the personal representative”; and F.S. 733.607 provides that: “… every personal representative has a right to, and shall take possession or control of, the decedent’s property, except protected homestead”. Based upon these statutory sections, a personal representative can only convey title to non-homestead property or unprotected homestead. Only when the property is clearly not the homestead of the decedent can the personal representative convey the property. An example would be vacant land, or when there is a court order determining other property to be the homestead of the decedent. Even though a personal representative has no authority over homestead property, we always require a deed from the personal representative to eliminate the interest of the estate.

• However, if there is an Order determining the property to be the homestead of the decedent, a deed from the personal representative would not be necessary because the personal representative has no authority over homestead property and the court has determined the property to be homestead. When we do not have solid proof that the property was the homestead of the decedent, we require a deed from the personal representative to eliminate the estate’s interest just in case the property was not the homestead of the decedent.

• Court Order. If there is a court Order authorizing the personal representative to convey the homestead property, is a deed from the personal representative sufficient to convey good title without obtaining deeds from the beneficiaries? The answer is “no” because a personal representative has no authority over homestead property even with a court order.

What Probate Documents Need To Be Recorded?

• In a Testate (“Will”) Estate, the following must be recorded:
  • Letters of Administration
  • Will
  • Order Admitting Will to Probate
  • Affidavit of No Florida Estate Taxes Due (Form DR 312)
  • Death Certificate
• In an Intestate (“No Will”) Estate, the following must be recorded:
  • Letters of Administration
  • Petition for Administration
  • Affidavit of No Florida Estate Taxes Due (Form DR 312)
  • Death Certificate
  • Order Authorizing Personal Representative to Convey

• In a testate estate, the Will provides the proof of who the beneficiaries are. But in an intestate estate, there is no Will listing the beneficiaries. Therefore, in probates with no Will, the probate courts used to enter Orders of Distribution listing the beneficiaries, or the Personal Representative would sign a Distributive Deed to the beneficiaries. Unfortunately, those two documents are not used on a regular basis in probate cases anymore. So, in lieu of those documents, we will rely upon the allegations in the Petition for Administration as to who the heirs are together with an affidavit from the heirs listed in the Petition as proof of the identity of the heirs of the decedent.

Other Documents To Be Recorded

• Order Determining Homestead. An Order determining homestead is not required but if such an Order was entered, a certified copy of it should be recorded.
• Order of Summary Administration.
  • In a Summary Administration, an Order Of Summary Administration must be issued and should be recorded. Usually an Order of Summary Administration lists the real property and the beneficiaries who are entitled to the property. However, sometimes the beneficiaries will negotiate a division of the property among themselves without exchanging deeds. You should make sure that the beneficiaries listed in the Order of Summary Administration match those listed in the Will; or if no Will, match those listed in the Petition for Summary Administration. If the Order of Summary Administration lists fewer beneficiaries than those listed in the Will or the Petition for Summary Administration, you should require deeds from all beneficiaries listed in the Will or the Petition for Summary Administration.

Homestead – The Rules Are Different

Homestead Law

• Regarding a devise of homestead property, Article X, Section 4(c) of the Florida Constitution and F.S. 732.4015(1), provide that: “ the homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except the homestead may be devised to the owner's spouse if there is no minor child.” Regarding intestate (no Will) property, F.S. 732.401(1) provides that: “If not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being a the time of the decedent’s death per stirpes.”

• The foregoing Constitutional Section and Statutory Sections restrict who the homestead property can be devised to (gifted to in a Will) if the decedent is survived by a spouse and/or minor children. If the decedent is survived by a spouse and no minor children, the only person that the homestead property can be devised to is the spouse. A gift in the Will of the homestead property to anybody other than the spouse will fail and the homestead will be inherited as intestate property as if there had been no Will. If the decedent is survived by a minor child, the homestead property cannot be devised to anybody. In this situation, any devise (gift in the Will) of the homestead will fail and the minor child (or children) will receive title to the homestead property under Florida’s intestate laws as if there had been no Will. F.S. 732.401(1) and 732.103.

• Based upon the foregoing law, the following questions should always be answered in order to determine who has title to the property and who deeds are needed from:
  • Was the property the homestead of the decedent?
  • Was the decedent survived by a spouse?
  • Was the decedent survived by any minor children?
  • Did the decedent have a Will?
  • To whom did the Will devise the homestead to?
  • Has the decedent’s estate been probated in Florida?

Examples Of How Probate Law Is Applied To Homestead

The following situations demonstrate how the probate laws are applied to homestead property when the decedent is survived by a spouse and/or minor children:

Example One. Title is vested solely in the decedent and he was survived by his spouse and adult children:

• The decedent’s Will devised the homestead to his spouse. That devise would be valid because the only person that he is allowed to devise the homestead to in this situation is his spouse. F.S. 732.4015(1).
  • The decedent’s Will devised the homestead to the adult children. Under F.S. 732.4015(1) and 732.401(1), the only person that the decedent can devise the homestead property to is his spouse. Since his Will devised the homestead to somebody other than his spouse, that devise would fail and the homestead would pass as if there was no Will i.e. as intestate property, pursuant to F.S. 732.401(1). Under that section, the surviving spouse would inherit a life estate and the adult children would receive a remainder interest. Pursuant to F.S. 732.401(2), in lieu of the life estate, the surviving spouse may elect to take an un-divided one-half interest in the homestead as a tenant in common with the children, who would inherit the other one-half interest.

Example Two. The decedent, who was the sole titleholder, was survived by a spouse and minor children.

• His Will devised the homestead to his spouse. In this situation, the homestead cannot be validly devised to anyone because the decedent was survived by minor children. Therefore, the homestead will be inherited according to F.S. 732.401(1) as if there was no Will. Under that statue, the surviving spouse will receive a life estate and the children will receive the remainder interest. Pursuant to F.S. 732.401(2), in lieu of the life estate, the surviving spouse may elect to take an un-divided one-half interest in the homestead as a tenant in common with the children, who would inherit the other one-half interest.

3. Example Three. The decedent was survived by two adult children and two minor children. His Will devised one-half of the homestead to the adult children and one-half of the homestead to the adult children, as trustees for the minor children. That devise would fail because under Art. X, Section 4(c) of the Florida Constitution, F.S. 732.4015(1), and 732.401(1), when the decedent is survived by minor children, the homestead cannot be devised to anyone. Therefore, the homestead would be inherited according to Florida’s intestate laws. F.S. 732.4015(1), 732.401(1), and 732.103 as if there had been no Will. Florida Statute 732.103 provides that: ”The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows: (1) To the lineal descendants of the decedent.” Since all of the children, adults and minors, are the lineal descendants of the decedent, they would “inherit” the homestead under forgoing statutes.

4. Example Four. The decedent was survived by minor children only and his Will devised the homestead to those minor children. Oddly, that devise would fail because under Art. X, Section 4(c) of the Florida Constitution, F.S. 732.4015(1), 732.401(1), and 732.103, when the decedent is survived by minor children, the homestead cannot be devised to anyone. Therefore, the homestead would be inherited according to Florida’s intestate laws as if there had been no Will. Since the minor children are the lineal descendants of the decedent, they would “inherit” the homestead under forgoing laws. So, even though the devise of the homestead to the minor children in the Will fails, the minor children will still inherit the homestead property.

5. Example Five. The decedent is survived by adult children only and his Will devised the homestead to those adult children. That devise would be valid and the adult children would receive the homestead as devisees under the Will. The reason that this devise is valid is because the decedent was not survived by a spouse or minor children so he could devise the homestead to whomever he desires.

6. Example Six. Assume the same facts as Example No. 5 that the decedent is survived by all adult children except that the decedent devised the homestead to one child instead of all of his adult children. Since the decedent was not survived by a spouse or a minor child, he may devise the homestead to whomever he desires, even somebody other than his children, so the devise to one child would be valid.

Probate types/options in state:

• Full Administration
• Summary Administration (certain limitations apply), both can be done as ancillary administrations
• Order Admitting Foreign Will to Record

Conveyance by heirs/devisees

• How heirs/devisees determined of record? If there is a Will, beneficiaries are listed in the Will. See requirements to record below. If no Will, we will rely on the recorded Petition for Administration as proof of the beneficiaries. See below for documents required to be recorded.
• Obtain….
  • If there was no Will, we need to record certified copies of the following in the County where the property is located:
    • Letters of Administration
    • Petition for Administration
    • Affidavit of Estate Taxes Due
    • Death Certificate
    • Order Authorizing Personal Representative to Convey
  • If there was a Will, you need to record certified copies of the following in the County where the property is located:
    • Letters of Administration
    • Will
    • Order Admitting Will to Probate -
    • Affidavit of No Estate Taxes Due
    • Death Certificate

Conveyance by Executor/Personal Representative

• General Rule. Always require deeds from the beneficiaries and from the personal representative. When we do not know for sure whether the property was the homestead of the decedent, we treat the property as if it was the homestead of the decedent and require deeds from the beneficiaries, and we treat it as if it was not the homestead of the decedent and require a deed from the Personal Representative.
• Record…. See above

Property held in trust

• Original Trustee alive: Deed from Trustee individually and as trustee of the trust. Joined by spouse if married and if the property is the Trustee’s homestead.
• Original trustee Dead - See below:
• If record title is vested in a Trustee of a Trust and there is evidence that the Settlor/Trustee is dead, make the following requirements:
  • If the property was NOT the homestead of the deceased/Settlor/Trustee
    • Record a Trust Certificate for the Trust confirming the identity of the successor trustee.
    • Record a Death Certificate for Settlor/Trustee .
    • Address creditor claims and potential estate tax liens in same manner as estate
  • If the property was the homestead of ______________, deceased/Settlor/Trustee of the _______________ Trust dated _____________, and if _________________, Settlor/Trustee was survived by a spouse and no minor children, the following will be required:
    • Deed from ___________________, individually and as successor Trustee of the ___________Trust, joined by spouse if subject property is the homestead of the successor Trustee to ____________________, purchaser.
    • Deed from _______________, the surviving spouse of the deceased Settlor/Trustee to ____________________, purchaser.
    • Deeds from ________________________, the lineal descendants [children of the deceased Settlor/Trustee and children of deceased children of the Settlor/Trustee] of the deceased Settlor/Trustee to ____________________, purchaser.
      • Note regarding requirement : deeds from the lineal descendants of ________________, deceased Settlor/Trustee will not be necessary if the Trust expressly provides that on the death of ________________, Settlor/Trustee of the ______________ Trust, that title to a 100% interest the homestead property goes to the surviving spouse of the deceased Settlor/Trustee.
    • If the deeds required from lineal descendants are necessary, record an Affidavit of Heirship from the surviving spouse of the deceased Settlor/Trustee and from the children of the deceased Settlor/Trustee confirming that they are all of the children [and children of deceased children, if applicable], of the deceased Settlor/Trustee of the __________________________ Trust.
    • Record a Trust Certificate for the _______________ Trust dated _____________.
    • Record a Death Certificate for ______________, Settlor/Trustee of the _______________ Trust dated _____________.
  • If the property was the homestead of ______________, Settlor/Trustee of the _______________ Trust dated _____________, and if _________________, Settlor/Trustee was survived by a spouse and minor children, the following will be required:
    • Deed from ___________________, individually and as successor Trustee of the ________________ Trust, joined by spouse if subject property is the homestead of the successor Trustee to ____________________, purchaser.
    • Deed from _______________, surviving spouse of the deceased Settlor/Trustee to ____________________, purchaser.
    • Deed(s) from ______________________, the Judicially Appointed Guardian for _________________________ , the minor children of _________________ , deceased Settlor/Trustee to ____________________, purchaser.
    • Record a certified copy of the Letters of Guardianship for _________________ the Guardian of ____________________.
    • Record a certified copy of the Guardianship Order Authorizing the conveyance of the subject property by the Guardian for ____________________________________ .
    • Record a Trust Certificate for the _______________ Trust dated _____________.
    • Record an Affidavit of Heirship from the surviving spouse of the deceased Settlor/Trustee and from the Guardian for the minor children of the deceased Trustee confirming that those minor children are all of the children of the deceased Settlor/Trustee of the ________________ Trust.
    • Record Death Certificate for ______________, Settlor/Trustee of the __________________ Trust dated _____________ .