Legal Question in Wills and Trusts in Florida

Re: is probate always necessary

Firstly, I am terribly sorry about the passing of your parents. To answer your question, more details will be needed to assess the best way of handling the situation. You should immediately contact an attorney. Without knowing how the property was titled, etc. it is difficult to present the best option to you. Also, depending on the situation, probate in Florida is not always as expensive and as timely as commonly rumored. However, depending on how the property was titled and whether homestead, probate may be able to be avoided. Also, many condos in Florida are "co-ops" and have certain provisions built into the contract that must be reviewed.

Should you have further questions or would like to consult me for possibly handling this for you, please contact me via email or phone at (407) 353-4728.

Re: is probate always necessary

If your parents owned the condo jointly, having acquired title after they were married, it passed automatically to your father. He needed only record a death certificate, an Affidavit Of No Florida Estate Tax Due, and perhaps an Affidavit of Continuous Marriage. Otherwise some probate would be required for her estate. After his death some form of probate is required. If his assets in his name alone with no beneficary are less than $75,000, and he had no creditors, and all the heirs agree, it can probably be done with a Summary Probate (less expensive and less complicated than the formal probate process) and a Determination Of Homestead. You would need a Florida attorney to prepare the necessary paperwork, file the papers, and attend hearings for you. The cost should not exceed $1000. If the requirements for Summary Probate are not met, formal probate would probably cost around $2,500.

Re: is probate always necessary

NOTE: This communication is not intended as and should not be interpreted as legal advice. Rather, it is intended solely as a general discussion of legal principles. You should not rely on or take action based on this communication without first presenting ALL relevant details to a competent attorney in your jurisdiction and then receiving the attorney's individualized advice for you. By reading the "Response" to your question or comment, you agree that the opinion expressed is not intended to, nor does it, create any attorney-client relationship, nor does it constitute legal advice to any person reviewing such information, nor will it be considered an attorney-client privileged communication. If you do not agree, then stop right here, and do not read any further.

An estate filing will probably be necessary, however, it should not be as expensive as you may think. Your father's failure to complete his plans may work to your advantage.

Although his heirs would save money on the probate of the estate, they would have incurred substantial tax consequences as a result of the loss of the stepped-up basis of the value of the property at the time of dad's death.

I strongly suggest that you consult with a qualified probate attorney in your area to review all of your questions regarding this matter.

Scott R. Jay, Esq., 305-249-8000