i live in my mothers home (she Passed away 1 month ago) and i wont ever sell her home can credit card companies make me move and sell her home? She left No will and 20 thousand in debt. The home is only worth 40 thousand and her car is worth 2 thousand
Please don't listen to the PA lawyer as he is unfamiliar with Florida laws. Your mothers home is probably protected by Florida's Homestead protection. Unlike the other response, if this is the case it is not an asset subject to probate and upon your mother's death, the home became an asset of her children. (Assuming no will and no spouse). While a probate is not necessary, if you decide to sell the home later, you will probably be required to do one. If you wait 2 years the creditor's claims will be barred and you will save some money because it will not be necessary to advertise the property to give creditors notice and an opportunity to complain.
If you do not plan on selling the property, you can move in, and live there without any risk of creditors taking over the home. If they do try and open a probate and claim an interest in the home, you should speak with a Florida Probate attorney and have them file a motion to determine homestead. Once this is approved by the judge, no creditors will be able to attach to the home (unless it is for repairs to the home or a mortgage).
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Assuming you are the only child you may need to open a probate administration to transfer title to your mother's homestead property. The home maybe considered homestead which may pass to you and may be protected from her creditors. Homestead property is treated differently than other probate property. If you have siblings or if your mother was survived by a spouse the distribution of the home may be slightly different.
Her car may also be exempt from your mother's creditors.
DISCLAIMER: I am not your attorney. This is not legal advice and you should consult and/or hire an attorney before proceding further.
I would urge you to go ahead and see a licensed, Florida attorney now.
If the home qualified as your mother's homestead under Article X, section 4(a) of the Florida Constitution, it passes to your mother's heirs or the beneficiaries under her will if those beneficiaries are related to her by blood or marriage. There are a lot of facts to be sorted through before that question can be answered. The homestead tax exemption is based upon some different statutes and a different section of the Florida Constitution, so that is not the sole factor.
If the home was owned in a way that provided for survivorship rights, it passes according to those survivorship rights and the homestead laws don't apply. Probate would not be required. It would be important to have an attorney review the title to make sure you do in fact have survivorship rights.
If it was your mother's homestead, the next question is whether she was survived by a spouse or minor child. The Florida Constitution says if she was survived by a spouse, she can leave it to anyone but her spouse, and if she attempts to do so, the spouse gets a life estate and her lineal descendants (children and children of deceased children) get the remainder interest. If she had no spouse or minor children she can leave to anyone, but if she did not have a will, it passes to her lineal descendants (you and your siblings, and the children of any sibling who died before your mother.) If your mother had minor children, the law says the home passes to her lineal descendants and she can't choose where it passes.
If it is homestead and either there is no will or the will left the home as allowed by the Constitution, then the next question is whether it is "protected homestead". The Constitution says that homestead passing to someone related to the deceased owner by blood or marriage is protected from the claims of the decedent's creditors. That would mean that if you were the only child, your mother was not married and had no minor children, the creditors cannot force you to sell the home to pay them.
Although the law says ownership passed at the moment of your mother's death, you have no proof of ownership and no proof that the home is protected from the claims of your mother's creditors. The best way to get this proof is through a probate proceeding. You can get an order showing who owns the property and that the property is protected from your mother's creditors. This is crucial if you want to apply for homeowner's insurance, apply for the homestead tax exemption, apply for a building permit, have the utilities transferred to your name, and to be able to sell or mortgage the property. It will also give you a process to cut off the creditors after about 3 months - stopping the calls and letters.
If your mother did not have a spouse and the car was left to you, you can get a similar order saying ownership passed to you free of the claims of your mother's creditors. Without an order, you'll have a tough time getting the registration renewed, title in your name, and auto insurance.
There is a shorter probate process called summary administration. In some parts of the state, a judge will not allow for a homestead order (as described above) in a summary administration procedure unless it has been more than two years since the owner died. That's because creditor claims are barred after two years from the date of death and they are affected by a determination that the home is protected from their claims.
My comments are not intended to establish an attorney-client relationship, are not confidential, and are not intended to constitute legal advice. Proper legal advice can only be given by an attorney who agrees to represent you, who reviews the facts of your specific case, who does not have a conflict of interest preventing the representation, and who is licensed as an attorney in the state where the law applies.
You may have a problem here. If the house and car were in her name alone, then they are probate assets. In most states, creditors are entitled to be paid from probate assets and they are to be paid before beneficiaries of an estate. So the estate must pay the credit card company before it can transfer the house and car to you. So you may have to sell the car and house to pay them off, unless you can make a deal with them. You need to retain estate counsel in your area to help you get over this difficult situation.
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Mr. Fromm is licensed to practice law in PA with offices in Philadelphia and Montgomery Counties and services clients in all parts of Pennsylvania. He can be reached at 215-735-2336 or at the email address listed below. He has received a 10.0 rating from AVVO and recently was featured as a 5Star Wealth Manager in the Philadelphia Magazine, November 2009 issue on page 123.
Mr. Fromm is ethically required to state that the response herein is not legal advice and does not create an attorney/ client relationship. Also, there are no recognized legal specialties under Pennsylvania law. Any references to a trust, estate or tax lawyer refer only to the fact that Mr. Fromm limits his practice to these areas of the law. These responses are only in the form of legal education and are intended to only provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply or make such reply unsuitable. Mr. Fromm strongly advises the questioner to confer with an attorney in their state in order to ensure proper advice is received.
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