What is probate real estate? Or in other words, how do the two legal matters interrelate? In actuality, the two matters are often intertwined because real estate fits under the umbrella of probate, especially when probate assets are being distributed. When we think of probate, we often think of the court process undergone when a person has passed away. This is a correct assumption. Probate deals with sorting and distributing the possessions of a deceased person, paying of any debts that are owed by the deceased person, and the winding up of any affairs of the deceased person.
On the other hand, real estate, by definition, refers to property in buildings and land. Individuals who pass away may have real estate remaining in their name. Perhaps a will was created wherein a particular person or beneficiary will receive real estate owned by the decedent. (To be clear, the term decedent refers to a person who has passed away. A decedent is also known as a deceased person.)
During the probate administration process when probate assets are distributed according to a will or Florida Statute in cases of individuals dying without a will (“dying intestate”), a common type of probate asset is real estate or real property. This is when the question of “What is probate real estate?” may occur. An important distinction to make during the probate administration process is whether an asset, such as real estate, is owned solely by the decedent, or whether that asset is co-owned. If an asset such as real estate is co-owned, then research must be done to determine how the real estate is titled.
Real Estate and Ownership Issues: Joint Tenants with Rights of Survivorship, Tenants-In-Common, and Tenants-By-The-Entirety
When real property, such as land or a house, is purchased, it may be purchased by more than one person. These individuals may choose to purchase the property as tenants-in-common or joint tenant with rights of survivorship. On another note, it is possible for co-owners to have established a provision which states that there is automatic succession of ownership upon the death of one of the co-owners. If the real estate was titled by the decedent and another person as joint tenants with rights of survivorship, this means that upon the death of one of the joint tenants the entire property goes to the living owner. This means that the real estate would not be considered a probate asset. Therefore the portion of real estate owned by the co-owner who passed away first could not be inherited or gifted through a will. That remaining portion would be assumed by the living or surviving co-owner.
If in fact the property was titled by the decedent and another person as tenants-in-common, then the real estate is considered a probate asset, notwithstanding certain legal exceptions such as the Homestead Exception. If the real estate is considered a probate asset that means that it is possible for a co-owner to state who would inherit their portion of the property upon their death. However, if a husband and wife own real property as tenants-by-the-entirety, then upon the death of a spouse the property would go to the living spouse. The real estate would not be considered a probate asset. An attorney is helpful in clarifying questions such as these, in addition to questions dealing with what is probate real estate?
A Possible Probate and Real Estate Scenario
For example, let’s say John Smith’s Aunt Susan recently passed away. John’s Aunt Susan may have owned vast amounts of agricultural land dotted with cattle, or she may have owned a small house in a suburb. This is where probate and real estate come together. A probate attorney would be able to assist in both of these matters. Furthermore, a client may ask what is probate real estate? Some of the questions asked by John Smith may include:
- Is there a will?
- Is the will valid?
- Am I mentioned in the will?
- Is there personal property and real estate in the will?
- What is probate real estate?
- Who owns the real estate now that Aunt Susan has passed?
- What about any debts owed by Aunt Susan?
- Can these debts affect the ownership of real estate?
A probate lawyer would assist Aunt Susan’s devisees specified in her will during the Probate Process. Now, John Smith, may be one of Aunt Susan’s devisees. According to Florida Statute 731.201(11), a devisee is a person who is, “designated in a will or trust to receive a devise.” What is a devise? Generally, a devise is, “a testamentary disposition of real and personal property.” Florida Statute 731.201(10). To put it plainly, if it is stated in Aunt Susan’s will that John Smith will receive his Aunt Susan’s real property, such as the agricultural land or small house in the suburbs, then he is a devisee. It is important to note that as a devisee of the real estate, John Smith will have to pay any taxes on that gift. As Florida Statute 731.201(10) states, “A devise is subject to charges for debts, expenses, and taxes as provided in this code, the will, or the trust.”
Probate and Real Estate Law at Bret Jones, P.A.
An understandable and straightforward approach to complicated matters is one of the many fine attributes of the attorneys at Bret Jones, P.A. Our attorneys and staff do their utmost to ensure that even the most basic questions about legal matters are answered in a no-nonsense, matter-of-fact way. At one time or another in your life, you or someone close to you may pose the question, “What is probate real estate?” You deserve an answer the helps you understand vast legal concepts in a succinct fashion.
Throughout the multitude of reasons that attorneys decide to study law, one reason remains a constant thread through each attorney. Within each attorney, lies a desire to assist their fellow person in one way or another. Attorneys are counselors at law. At Bret Jones, P.A., our attorneys strive to provide counsel that guides our clients to make the decision that best suits their needs.
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