Posted By Larry Tolchinsky on September 21, 2016
Florida law is very protective of property ownership rights in our State. Under the law, there is never a moment when any piece of property is not owned by someone or something.
Maybe it’s a person, or an estate, or a trust or some other legal entity (Corporation, LLC, etc.). The kind of owner may vary.
This is important to know when a loved one passes away and you stand to inherit from their estate. As an heir, when can you take possession of a condo left to you by your deceased grandfather? What about the car, or the Microsoft stock?
Florida Law of Succession
Here’s what happens when someone passes away in Florida. Our probate code works to pass ownership of the deceased person’s real estate and personal property. It happens instantly.
There is an automatic change of legal ownership upon the moment of death. This is the “law of succession.”
Who are the new property owners?
When someone dies leaving behind a valid Last Will and Testament, it identifies the new owners of the decedent’s property. These are the “beneficiaries” to the will.
If someone passes without a valid will, then they are said to have died “intestate.” That’s legal jargon for dying without a will. Intestate succession means that Florida probate law decides who will be the new owner of the decedent’s land and other assets. These are the decedent’s “heirs.”
Florida Laws of Descent and Distribution
Heirs are vested with an interest in the decedent’s real or personal property immediately upon the death of the decedent. In re Slawson’s Estate, 41 So. 2d 324 (Fla. 1949).
Who are the rightful heirs when someone dies without a will?
Identifying the heirs to the decedent’s estate is done by applying Florida probate laws to the situation. These are the laws of “descent and distribution.” We’ve discussed how they work. See:
- “Who Gets Your Property if You Die Without a Will in Florida? Determining Heirs Without a Will Under Florida Law” and
- “Who Gets My Property If I Die Without a Will?”.
The laws of descent and distribution do two things. First, the statutes determine the “heirs” out of all the friends and family members. Second, they distribute the property to each heir. Spouses, children, siblings, etc., may all be eligible to inherit as an heir after someone passes away without a will in Florida.
Homesteads get special treatment. So do surviving spouses (widows and widowers).
Which family member gets to inherit? What percentage does each person get? These questions are answered by application of the Florida probate laws of “descent and distribution.”
Florida Laws of Devolution of Title
That’s just the first step. Just because you are the designated heir of the vacation home in Boca Raton does not mean that you will end up with it.
Other laws determine what each heir actually gets to take and keep as their inheritance. These are the laws of “devolution of title.”
This is a task of the estate’s Personal Representative. It is done under the supervision of the probate judge.
Here’s why. Initially, the estate itself has an ownership interest in the decedent’s property. This is deemed necessary to resolve the decedent’s personal business. It’s part of what happens during the estate administration.
The personal representative, for example, will take control of a small business and pay the decedent’s mortgage payment. The personal representative will have to keep current on condo dues as well as the taxes.
During the administration, things may change regarding what property is held by the estate (some assets may need to be sold because they are either unproductive or because the estate needs liquidity). This may affect what is left to be inherited.
Things that the heir expects to inherit — like the jewelry or the stock or the house — may be used by the personal representative for other purposes.
Heir Has Contingent Interest in Inherited Property
So what does the heir own? Until the estate’s obligations are met, and all the decedent’s debts are paid, the heirs have what is called “contingent” legal interests in the property they are to inherit.
Florida law is clear here. The decedent’s property must be used to pay all valid indebtedness (taxes, bills, mortgages, etc.) before any heir can receive anything. Farmers’ Union Warehouse Co. v. T.L. Wells & Bros., 65 Fla. 350, 61 So. 745 (1913).
1. Real Estate
Legally, in an estate estate, where the property is owned by the decedent alone, the title to the homestead real estate passes to the heirs at law (surviving spouse, children, etc.) upon the death of the decedent. However, it may pass subject to a lien by the personal representative (See Florida Statute 733.608 (3)).
2. Personal Property
For the decedent’s personal property (everything that isn’t land), title initially vests in the personal representative of the decedent’s estate. This allows for the p.r. to do what is necessary to fully administrate the estate; after all creditor claims have been satisfied and other aspects of the estate are concluded, then the property is distributed.
At that time, the heir gets legal title to the personal property. See, Brown v. Indian River Orange Lands, 131 Fla. 466, 179 So. 789 (1938); Coral Gables First Nat. Bank v. Hart, 155 Fla. 482, 20 So. 2d 647 (1945).
What Can Keep The Heir From Getting The Inherited Property?
Sometimes, the estate needs the property to pay taxes or to pay operating costs. Sometimes, the heir doesn’t want the property. And, there may be times when the heir’s creditors are entitled to the property.
1. Resolution of Estate Matters
There may be claims, debts, etc., to be applied against the property before the heir is able to possess it. (A mortgage on real estate or a car note may need to be paid off out of the decedent’s bank account; the car may need to be sold to pay income taxes; etc.)
There may be a question of transferring the asset to the heir. For example, minors cannot own certain types of property. There may be an issue if the title will be vested or contingent.
The bottom line. When someone dies without a will, the heir cannot simply take the inherited property and leave. His or her interest in the inherited property may or may not result in the heir getting to keep it. The estate administration takes priority.
2. Heir Transferring Interest in the Inherited Property
After the heirs are determined and notified, they then generally wait until the estate is resolved before the property is distributed by the personal representative (sometimes, there is a partial distribution of assets before the estate is concluded). There is no legal duty they do anything more. The heirs have no legal duty to administer the estate.
However, some heirs may think it best to take action regarding their inheritance before the property is distributed. Maybe they don’t want to end up with the inherited property. Rather than waiting to take possession of the inheritance, the heir may:
- convey an interest in the property;
- sell an interest in the property;
- mortgage or otherwise encumber the property;
- assign an interest to someone else; or
- give away the interest.
3. Heir’s Creditor Makes a Claim to Take Inherited Property
What if the heir has creditors who want to take her inheritance? Can the heir lose their inheritance to the credit card company or the mortgage lender?
Florida Statute 733.706 prohibits any levy being made against any property held in the decedent’s estate just because a creditor has a judgment against the heir. However, there are exceptions to this general rule.
Courts have allowed some creditors to go ahead and bring their creditor’s bill to the personal representative to try and collect what is owed to them by the heir. This has been allowed in situations where the creditor already has a judgment from a court that the debt is valid and owed by the heir, and where the creditor can prove to the probate court and the personal representative that it has no other legal remedy available to it. Martinez v. Balbin, 76 So. 2d 488 (Fla. 1954); Brown v. Sweat, 149 Fla. 524, 6 So. 2d 538 (1942).
So, if the creditor has a judgment against the heir in hand, then it may be able to argue a superior right to the inherited property to the probate judge. This may be something that the heir will want to contest in a court proceeding.
The Title That Passes to the Heir Under Florida Law
There are different kinds of title and ways to own property. When someone passes away and the laws of intestate succession apply, the heir will need to know what kind of title he or she is inheriting.
Let’s consider the home or condo of the decedent. If the heir is inheriting alone, then he or she takes 100% ownership or “fee simple title” to the property. (Special rules apply to homestead property.)
If there is more than one heir, say several siblings or a bunch of grand kids, then they may inherit ownership interests as “tenants in common” in the decedent’s condo. Here, they share the ownership of the condo as well as the responsibility for its repair, maintenance, and upkeep (dues, fees, taxes, etc.).
For example, in the case of Dixon v. Becker, 134 Fla. 547, 184 So. 114 (1938), the decedent’s two children inherited land with fee simple title in undivided one-half interests.
Questions About Inheritance Under Florida Law
If you or a loved one have questions about your inheritance, such as
- when title passes;
- if you can use it as collateral to buy a house;
- if you can sell it;
- when you can take possession, etc.,
then a Florida probate lawyer will be able to help you sort through the applicable laws, statutes, and court precedent to figure out your options and best interests.
You may also have questions about how the estate’s administration is being handled. Did the personal representative do the right thing with your inheritance? You may want to file an adversary proceeding with the probate court to address your concerns.
If you have a question about an intestate estate or what to learn about descent and distribution of estate assets, a good piece of advice is to talk with a Florida probate lawyer to learn about your rights. Most probate lawyers, like Larry Tolchinsky, offer a free initial consultation (either over phone or in person, whichever you prefer) to answer your questions.
Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.
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