Not uncommonly, we have prospective clients come into the office after a loved one has died. Their request is often simple...for example:"I need a deed to put Mom's house into my name. Her Will says I'm supposed to get it. Can you prepare that deed for me?" Unfortunately, it's not that simple. In most instances, there will need to be a court order to transfer the property. And in Florida, that means opening a probate.
In Florida, probate is a court proceeding that is filed in the county where the deceased person last resided. The two types of probate are summary and formal. Which type of probate applies depends on the size and type of assets involved. Either way, certain steps have to occur so that through the court process, the real estate will get transferred. Sadly, that's only after the expense and time delay caused by probate. How much expense? Easily several thousand dollars and often MUCH more. How long does it take? Easily four to six months and often MUCH longer.
Think of it this way: Mom owned a house titled only in her name. Now that Mom is gone, she cannot sign a deed transferring the property. Even if Mom had given a Power of Attorney to someone, that person cannot use the Power of Attorney after Mom has died. So the fact is, after Mom's death, no one has the power to transfer the property. It can only be done with the appropriate order from the probate court. Getting a court order doesn't mean just appearing at the Clerk's office requesting one. It typically means hiring a lawyer who prepares the initial probate documents, files them, and then begins the probate process. Eventually the house will get transferred but in the meantime, the expense of upkeep continues, control of the property is in limbo, and transfer cannot occur until the appropriate court order allows it.
Reading this, most persons would agree that having to open a probate in order to deal with real estate is not a good thing-unless you like hiring a lawyer, paying him or her to handle the probate, and then waiting months, and perhaps years, so the property can be transferred!
So is there a viable alternative? The answer is a resounding "yes." Experienced estate lawyers often will set up a Living Trust (also known as a Revocable Trust) for a person who owns real property. After the Trust is in place, the real estate is transferred into the Trust. During the person's lifetime, they still own the real property and they can use it any way they wish. But upon the death of the owner, the Trustee named in the Trust can deal with and transfer the property without filing a probate. And setting up such a Trust can be done at a fraction of the cost and time of probate--so long as it is done before the person dies. Once they're gone, it's too late and opening a probate will be the next step.