When is probate required to transfer title to real estate?

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Probate is required whenever there are assets in the sole name of the decedent. If the decedent owned a piece of real estate in his sole name, or as tenants in common with a co-owner, then probate will be required in order to remove the decedentís name from the real estate. Probate will be required regardless of whether the decedent left a Last Will and Testament. Probate is the court supervised process for retitling assets and determining the correct beneficiaries to receive the assets. Often beneficiaries decide to sell the real estate during the probate process. It is always prudent to order a title commitment associated with the real property many months before the proposed closing in order to confirm what documentation may be required from the probate court to clear title. If there is a Last Will and Testament which authorizes the personal representative to sell real property, then an additional order from the probate court authorizing the sale should not be required. If the decedent did not have a Last Will and Testament, an order from the probate court will typically be required in order to clear title. The petition authorizing the sale will include the fair market value of the real estate, the contract for sale, and will be served on all interested parties to the transaction. If there are no outstanding objections to the sale, the judge will issue an order authorizing the sale, and a certified copy of the order will be recorded on the official records during the closing process. Obtaining such orders from the probate court takes time, so it is important understand what orders will be required before setting closing dates on the sales contract. If orders cannot not be obtained prior to the closing date, the buyer and seller must enter into an extension associated with the sales contract. If the real estate was the homestead of the decedent, there can be additional complications to the closing process. Floridaís state constitution provides special provisions for how a decedentís homestead is to be treated for purposes of decent and devise. In order to sell a decedentís homestead property, often quit claim deeds from the intestate heirs to the new owner will be required to complete the closing process. Alternatively, you can obtain an order of homestead determination from the probate court. One problem is that the order of homestead will not be issued until the expiration of the 90 day creditor period, which can significantly prolong the closing process. Itís best to consult an experienced probate attorney from the Florida Probate Law Firm in order to confirm the fastest and most efficient way to sell real estate during the probate process. Contact Florida Probate Law Firm for a Free Consultation today at 561-210-5500.

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