Legal Question in Wills and Trusts in Florida
trust/will & problem selling prop
had attorney draw up rev. trust & will, dur poa, & health car dir. for sister, who has minor children, she passed away due to cancer. attorney knew the homestead prop had to be sold - now title company says trustee can't sell has to go thru probate . why if attorney knew what we wanted- what is missing or what did this attrny not do? trying to get a hold of original attorney but no response yet. Please help me shed some light on this we can't afford to stay in hse and was supp'd to close end of the wk
2 Answers from Attorneys
Re: trust/will & problem selling prop
Without reading the trust agreement no one can answer. Was the deed title put in the name of the trust?
Re: trust/will & problem selling prop
In Florida an unmarried individual with minor children may not leave that homestead other than outright to the children, either through a Will or a Trust. It passes to them no matter what the Will or Trust may say. So, for the property to be dealt with (sale, refinancing, etc.), a guardian of the children's property must be appointed by the court for minor children. The reason the home has to go through a probate process is to determine that it was her homestead, to whom it passed, and whether it thus passes free of creditors. Depending on the probate court involved, and the title company handling the closing, it may be possible to complete the sale, with the proceeds being held in escrow until the homestead status, guardianship, etc., is taken care of.
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