Here’s a frequently asked question that deserves a slightly more intricate answer:
“I’m clearly a child of (the decedent). Why can’t I just sign a quit claim deed over to myself so I can sell this property?”
Short answer: You do not (yet) have the legal authority to sign or otherwise transfer property on the decedent’s behalf. Additionally, you can’t sign a deed to property which you do not yet legally own.
A Deeper Look
Probate in Florida is a process that is required to sell real estate on behalf of a deceased individual (decedent). However, many people don’t understand the mechanics of this requirement so I’ll try to break it down for you.
If John Smith was the record owner of a piece of real estate and subsequently dies, the real estate becomes part of his “probate estate”. The owner of record is “The Estate of John Smith”.
Someone must step forward and seek authorization to sell real estate property on John’s behalf or on behalf of the estate. Enter the probate process.
A traditional probate case begins with a Petition for Administration which among other things, requests that a personal representative (PR, also known as executor) is appointed. Once appointed, the PR receives “Letters of Administration” which allows the PR to act on behalf of the estate and sell or otherwise transfer assets of the estate, including real estate holdings.
The above described court procedure is called “Formal Administration” however, there is another procedure called “Summary Administration” which is, as the name implies, a shorter version of the probate process.
Summary Administration is very often a viable solution assuming that there aren’t many creditor issues that stand in the way. It’s cheaper, faster and more efficient (but has some disadvantages as well.)
Regarding Homestead Real Estate
One other nuance is the concept of homestead real estate. The confusion lies in the often misunderstood law that “homestead is not a probate asset“. If the decedent’s only real estate holding is real estate, probate will still be necessary but only for the purposes of asking a judge to “determine” (declaring) that the property is indeed a protected homestead.
Feel free to comment below if you have any other general questions.