When someone passes away in Florida, laws immediately come into play to protect the decedent’s property. An “estate” is formed under Florida law as the official owner of the decedent’s real estate and personal property until those assets are sold or distributed to the heirs. The person that takes care of overseeing the sale or distribution is called the “Personal Representative,” which many may recognize as an “executor” or “administrator.” The personal representative is appointed by a probate judge, and is usually a person named in the decedent’s Last Will and Testament.
Role Of The Florida Personal Representative
The Personal Representative is granted the power, through the issuance of Letters of Administration, to carry out the estate administration. He or she searches for the decedent’s assets, gathers these assets (and safeguards them), file tax returns, and make sure valid debts are paid. For details on the steps that the Personal Representative must undertake, consult our earlier post, “21 Duties of a Florida Personal Representative According to Florida Law.”
Most Florida Estates Include One Common Asset
Florida estate assets can be as varied and unique, just as unique as the people who come to live and play here in our beautiful oceanfront communities. It’s not unusual for Florida estates to hold things like famous works of art, yachts or real estate holdings for property located in other parts of the world.
However, one asset common to most Florida estates is an automobile. And, believe it or not, this asset has caused controversy in lots of Florida estates over the years. Who can drive the car, does it need to be insured, where should it be stored, and when can it be sold or distributed to the beneficiaries? After all, it’s just sitting there ….
8 Common Issues Florida Personal Representatives Face With A Car Or Truck
1. Locating The Official Certificate Of Title For The Vehicle
Before anything can be done regarding any motor vehicle owned by an estate, the Personal Representative has the legal duty to confirm ownership of that car or truck. This is part of preparing the inventory of the estate, one of the first big tasks handled by the Personal Representative.
How is ownership verified? The personal representative should try and locate and review the official Certificate of Title issued by the Florida Department of Highway Safety and Motor Vehicles, which is the agency where all Florida motor vehicle records are maintained. If the title cannot be located, then the Personal Representative must request a duplicate Certificate of Title. Once the car is ready to be sold or distributed to the beneficiaries, the certificate of title is then signed by the Personal Representative transferring title to the new owner. See Florida Statute 319.28.
2. Fixing Problems With The Certificate Of Title For The Car Or Truck
For instance, the name on the Certificate of Title may not be the same as the name of the decedent on the Death Certificate. Maybe a name change wasn’t filed with the DMV after marriage or divorce.
If there is any problem with the Certificate of Title, the Personal Representative must fix it before the car can be transferred to a third party.
3. There’s More Than One Titleholder On The Title
Things are easier when the car or truck is held solely in the name of the person who has passed away. However, there are occasions when the Personal Representative is faced with two or more titleholders on the Certificate of Title. In this instance, the ownership interest in the vehicle must be investigated to see if the decedent’s interest survives his or her passing. If so, the car or truck is an asset of the estate, subject to estate administration (including creditor claims).
4. Is There Adequate Insurance For The Car Or Truck?
The automobile policy issued to the deceased titleholder may extend past the date of death, but steps need to be taken to make sure the insurance company will continue coverage. The Personal Representative must protect the vehicle as soon as possible by notifying the insurance carrier that their insured has died and that a personal representative has been appointed for his or her estate. The insurance company may then issue an endorsement to the insurance policy naming the Personal Representative as the insured party.
It’s also part of the Personal Representative’s job to make sure that the insurance policy is sufficient to cover the vehicle in case of a loss. Did the decedent have the correct coverage for a vintage or rare car? If not, the estate may need to pay for additional coverage.
5. Protecting The Motor Vehicle
One of the immediate jobs of the Personal Representative is to find out where the car or truck is located and make sure that it is safe from harm. If it’s not in a safe location, then it must be moved and stored. Additionally, the motor vehicle needs to be safeguarded from being used, temporarily. The surviving spouse, and other family members, may need to be warned against using the motor vehicle while the Personal Representative is locating and gathering assets and determining insurance coverage issues. Some Personal Representatives may be forced to have someone disable the vehicle during this interim period.
6. Deciding The Value of the Motor Vehicle
The Personal Representative has the duty of confirming the fair market value of the motor vehicle. This information is used for the preparation of the inventory and for the Federal Estate Tax Return, if one is filed.
7. Is The Car Exempt Property?
Under Florida Statute 732.402, the surviving spouse (and if there is no widow or widower, then the surviving children) has a legal right to “exempt property” as that is defined in the statute. This includes up to two automobiles used by the decedent or members of his or her immediate family. However, it must have been used as a personal vehicle — an everyday car — and it cannot weigh over 15,000 pounds as a general rule.
There is a four month deadline for the widow or widower (or surviving children) to notify the Personal Representative that they are claiming the car as exempt property.
If the car is specifically mentioned in the Last Will and Testament, then it’s not considered exempt property. In these instances, the Personal Representative handles an “early distribution” of the automobile to the widow or widower (there may be some limitations here on partial distributions that complicate things).
8. What About Sales Tax?
Florida law protects the transfer of title for the decedent’s motor vehicle from being required to pay sales tax. The Personal Representative has to file an Application for Certificate of Title With/Without Registration and complete its “certification of exemption from sales tax when the transfer results from inheritance”.
What Should You Do?
In some Florida probate matters, things can become unfriendly and tense. For instance, some family members may not understand why they can’t use the decedent’s car or truck. What’s taking so long? Or, the Personal Representative may not be moving as fast as others would like in clearing up problems with the vehicle that he or she has discovered. How can things get moving and the car released to the named beneficiary so it can be used and driven?
Having an experienced Florida probate lawyer in these situations can be helpful both to beneficiaries as well as the Personal Representative. And, the cost of enlisting the help of a probate attorney here may be surprisingly less than you assume. Most probate lawyers, like Larry Tolchinsky, offer a free initial consultation (either over phone or in person, whichever you prefer) to answer your questions.
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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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