When is an affidavit of heirs required?
In Florida and other states, when a person dies without drafting a legal will that person is said to have died intestate. When this happens, their estate must go through probate. That means state law governs who will inherit the deceased person’s property and other assets, including real estate.
According to a survey from senior living referral service Caring.com, only 33% of adults in the U.S. have documented their end-of-life plans. Which leaves 67% without legal wills.
In order to distribute everything equitably to one’s heirs, a probate court needs to determine those heirs. This is done with an Affidavit of Heirship, or affidavit of heirs. The affidavit is of singular importance because it’s the tool used by the court to apply the law correctly and make sure all of the deceased’s heirs are accounted for and eliminates the uncertainties of extended family members inheritance portions. It identifies all of the deceased’s known family members at the time of their death, as well as how they are related to the deceased. This includes everyone from any children of the deceased to siblings, parents, aunts, uncles, nieces, and nephews.
In most Florida counties, an estate that is intestate cannot proceed through probate without the Affidavit, in which case a probate clerk is tasked with completing the documentation and continue to send the Affidavit back until it is complete and correct.
Once the affidavit of heirs has been completed and filed, the court will appoint a personal representative. This can be an heir or friend of the deceased who volunteers to step up to process the estate and make sure all monies, valuables, personal possessions, and other assets are handled appropriately. This includes clothing items, jewelry, personal effects, and automobiles.
How does a property end up in probate?
Because it is not subject to creditors, a deceased’s home is not considered part of the probate estate. However, the estate’s personal representative will still need to get a court order stating that the property was the deceased person’s homestead, especially if the family plans on selling the property.
This is where things can get complicated. It is easy for a title company to ascertain that the deceased owned their home. But what isn’t clear from the title records is whether the deceased resided in that home at or before death. For example, it is fairly common for a child to have an elderly or ailing parent move in with them to care for them. The home may have been rented. Or, the deceased may have lived in a care facility or hospice prior to their death. Even if they previously applied for a homestead exemption, there is nothing showing who actually lived on the property. If the owner lived in the home, that property is legally known as their homestead.
In this case the title company will probably file a court order to prove that the property was the owner’s homestead through death when that owner had creditors. A court order requires a court proceeding, which in this case is probate. That means that a surviving family member will have to open probate even if the home was in a living trust and there are no assets to probate.
Once the probate court determines homestead status and shows it is exempt from any claims, the title insurance company will issue insurance to potential buyers and their mortgage company.
What if multiple heirs inherit the same property?
Oftentimes siblings will inherit their parents’ home and must decide what to do with their share of that asset. They can keep it and rent it out, one of them can live in it, or they can sell it and split the profits. But what happens when one heir doesn’t want to sell?
It is not necessary that all heirs are in agreement regarding the sale. If it’s in probate, the court has the authority to sell the property in the case of outstanding debt; otherwise, the executer of the will has the authority to sell the property. If you are the executer, while you don’t need to have the other beneficiary’s permission to sell, but you should notify them of your intention and get their input. And in Florida you can force a sale of a co-owned property, though it requires going through the court system.
How to prevent probate
Probate can be a lengthy and time-consuming process, depending on the number of heirs and the size of the estate. It’s best for you and your beneficiaries if you can avoid it altogether. Especially if the inheritor needs to dispense the property forthwith. Fortunately, there are two ways to keep your home out of probate.
- A Will. In the case where there is a will, the house will simply pass to the heir or heirs named in the document.
- A Trust. If the property was placed in a trust, it can be transferred to the beneficiary named in the document.
The person doesn’t have to be deceased for the home to be placed in a trust. They can set up what is known as a living trust and transfer their property into it while they are still alive.
A living trust has the added advantage of maintaining privacy. A will becomes a matter of public record once it’s been probated, allowing anyone to see how much the estate was worth and what beneficiaries got which funds. But a living trust remains private. Many individuals choose to purchase homes under a trust to keep their identities and details of the transaction private.
Importance of an affidavit of heirs if probate ensues
Not only is dispensing a deceased relative’s estate time-consuming, it can also be an expensive process. Whatever path you choose to protect your families interests during an inheretence, it all begins with an Affidavit of Heirs. To avoid one of the most common setbacks should probate occur, it’s a good idea to have your real estate attorney process an Affidavit of Heirs, ensuring the proper documentation of the affidavit is expedited and on-file, which in turn can save weeks and even months in probate.
When you need real estate advice, contact attorney David E. Klein, Esq. or Guy Rabideau at Rabideauklein.com. They are Florida Bar Board Certified in Real Estate Law and have the expertise and experience you need to ensure that your interests are protected during your property transactions across the Palm Beaches and throughout Florida.