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Probate needed if no debts and no will?

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Mourningdove79

Junior Member
What is the name of your state? FLORIDA

My father in law died last week without a will. There are only two children (my husband and his sister). He owned only a small home where they (the two siblings) grew up. He has been divorced from their mom for several decades.

He had a mortgage on the house for $17K for improvements which he paid faithfully. He had a small bank account which he had his daughter's name on also in case he ever went in the hospital (he had a bad heart-it's what killed him). She is actually the one who lives in Florida and is dealing with most of this-We live in VA.

He had no debts at all. Not even a subscription to cable or a magazines or even the newspaper. The utilities have been notified, as has been the house insurance and the mortgage co. The mortgage co. said we could do a "simple assumption". Is this all that needs to be done? Or do we need to hire an attorney to put all this in probate? Forgive my ignorance, but I am not even exactly sure what "probate" entails. It was my impression that probate was so that creditors could claim anything owed against his estate or relatives could also place claims. There is no such situation here. There is no valuables, etc.

Any advice on what we need to do? Mainly they are very distraught and devasted right now. They want to keep the house in the family. Both are married and have homes, families, etc. What we plan and agree to do, is rent out the home to pay the mortgage and then own it outright. Is this ok to do?

Thank you for any advice you can offer.

Carlie
 


anteater

Senior Member
What is the name of your state? FLORIDA

He had a mortgage on the house for $17K for improvements which he paid faithfully. He had a small bank account which he had his daughter's name on also in case he ever went in the hospital (he had a bad heart-it's what killed him). She is actually the one who lives in Florida and is dealing with most of this-We live in VA.

He had no debts at all. Not even a subscription to cable or a magazines or even the newspaper. The utilities have been notified, as has been the house insurance and the mortgage co. The mortgage co. said we could do a "simple assumption". Is this all that needs to be done? Or do we need to hire an attorney to put all this in probate? Forgive my ignorance, but I am not even exactly sure what "probate" entails. It was my impression that probate was so that creditors could claim anything owed against his estate or relatives could also place claims. There is no such situation here. There is no valuables, etc.
In addition to ensuring that legitimate creditors are paid, probate is the process to determine the deceased's heirs and to legally transfer property to those heirs. The mortgage company is only addressing the question of the mortgage, not ownership of the house. Apparently, they are willing to allow the heirs to assume the mortgage, although the heirs could re-finance if they chose to do so. But, first, the heirs have to own the property. That is what probate is for. Once the heirs own the property, they are free to do with it as they wih.

The Florida Bar has a pamphlet about probate (also available as a PDF document):
http://www.floridabar.org/tfb/TFBConsum.nsf/0a92a6dc28e76ae58525700a005d0d53/92f75229484644c985256b2f006c5a7a?OpenDocument

And this law firm's website has a pretty good description of probate:
http://www.statewideprobate.com/probate/probate.htm
 

ladybg1

Member
because there is real estate involved Florida requires a Formal Probate. This means that with or without a will. you have to hire an atty.The fee that the atty charges is mandated by the state & is a differing percentage ie 2% for 1st 10.000, 3 % for amt over xxx---I can't remember the percentages or amts. With my dads estate it ended up being about 5% of the total estate value. Dad had a will & all 3 of us were in agreement on everything (I know that is rare). But we had to use an atty, could not do it without one.
 

anteater

Senior Member
...The fee that the atty charges is mandated by the state & is a differing percentage ie 2% for 1st 10.000, 3 % for amt over xxx---I can't remember the percentages or amts. With my dads estate it ended up being about 5% of the total estate value....
ladybg1 - Florida law does not mandate that the attorney receive a % of the estate value. The law does set out what will be presumed to be reasonable attorney fees if the compensation is based upon the estate value. However, the estate's personal representative is free to negotiate an alternative method of compensation with the attorney. This is covered in 733.6171 of the Florida Statutues.

As one of the sources mentioned in my first post puts it:
The major pitfalls in hiring a probate lawyer are: (a) hiring an inexperienced attorney, or (b) over-paying the attorney. Florida law allows, but does not require, attorneys to charge probate fees based upon a percentage of the estate value. In some estates, this can lead to fees amounting to many hundreds of dollars per hour – a windfall for the lawyer! Even in smaller cases, the attorneys often cover themselves by charging either a percentage or by the hour, whichever works out higher for the attorney. Florida Statutes state that 3% of the estate value is “presumed reasonable” for attorneys fees in estates under $1 million and 2.5% on the next $2 million in estate value.

However, the vast majority of estates over $100,000 do not require so much legal assistance as to make an “hourly rate” fee come close to the “percentage” fee. This is especially true in estates with primarily liquid assets and a personal representative who has the time and experience to administer the estate with minimal guidance from the estate attorney and tax consultant.
 

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