Personal rep sell home without probate

[RWatson]

Florida. My mother has a will, she is not wanting her will to have to go through probate (not sure why other than cost) if her home is not sold before her death, can I as her personal rep (listed in her will) sell her home without going through probate? What is the best way to precede?

 

[Taxing Matters]

In Florida, if the total value of the estate is at least $75,000 then it must go through formal probate. If the estate is worth less than that then the estate may use a shorter & faster probate process known as summary administration. Either way, the court is involved at least a little bit, which means that some delay in settling the estate is likely if she uses either of these methods.

Probate is not cheap and can take a very long time in some states, which is why estate planning to include bypassing probate for as much of the estate assets is quite popular, especially when the state probate process is neither cheap or swift.

She should see an estate planning attorney about which plan makes the most sense for her. She could put the home and pretty much all her assets into a revocable living trust. Trusts don't go through probate, so the trustee may start the process of carrying out the trust creator's instructions almost immediately and without the cost of probate. She can also better control who gets what and when. If she wants a beneficiary to get his/her share at some future date or event (say, for example, funding a grandchild's college education) then the trust is probably what she'll want to She also may use a beneficiary deed or Lady Bird deed. Both of these transfer the property to the beneficiaries named in the deed immediately upon the owner's death. (Thus, no opportunity for more creative plans like holding the assets for a kid's tuition.) No probate required. A filing with the clerk's office that handles real estate matters with a copy of the death certificate may be needed. That's not difficult or expensive. Florida law may allow some other option(s) too.

The mix of assets she has and what her goals are will be important factors in choosing what would work best for her. I suggest she see an estate planning attorney about that. The fees for that consultation will be lot cheaper than probate (or court contests if some mistake is made in setting up the estate plan). She'd also have the comfort now of knowing what will happen to her things when she dies and that legal fees and costs won't end up taking a big bite out the estate.

 

[RWatson]

Thank you

 

[adjusterjack]

She also may use a beneficiary deed or Lady Bird deed. Both of these transfer the property to the beneficiaries named in the deed immediately upon the owner's death.

Except that Florida has not yet adopted a beneficiary (transfer on death) deed as other states have.

The Lady Bird deed, also called an Enhanced Life Estate deed, is one option to avoid probate of real estate. Not quite as simple as a pure beneficiary deed.

"The enhanced life estate deed has all the features of a life estate deed, but enhanced life estate, or lady bird, interest is “enhanced” by your rights, as the life estate holder, to revoke the deed or sell and mortgage the property. You have complete control over the property while you are alive. A lady bird deed allows you to freely sell, transfer, or mortgage the property without the beneficiary’s consent.

Because the Florida enhanced life estate deed is revocable, you reserve the right to deed the property back to your own name or transfer the property to a third party. Your transfer of the property effectively cancels out the lady bird deed and divests the remainderman of their interest."

That's part of the story - gleaned from the following website which has additional information.

What Is a Florida Lady Bird Deed and Does It Avoid Probate? - Alper Law

Yes, mods, it's a lawyer's website. Every site that has this comprehensive information is a lawyer's website. Please don't remove the link.

 

[RWatson]

Thank you

 

[zddoodah]

if her home is not sold before her death, can I as her personal rep (listed in her will) sell her home without going through probate?

No.

What is the best way to precede?

Your mother should consult with an estate planning attorney about a trust or other device that may allow for the avoidance of probate after her death.

 

[adjusterjack]

What is the best way to precede?

Either a lady bird deed or a revocable living trust (with you as successor trustee and beneficiary) may be the two best options in Florida.

Either one is likely to cost less in attorney fees now than probate fees would cost later, unless you are competent to handle the probate complexities without an attorney.