I was told that I have to see an attorney that does probate. My husband died 2 years ago, and the deed was only in his name I have been paying the house but I would llike to sell it is this very costly? I do have a will but since his death was so sudden we never filed it through the court it was signed by him but I don't know if this will be considered good enough. We bought the house together the only reason it got put in his name was because my credit was not as good as his. I was told that the deed would be in both our names and it wasn't although the Title Insurance company does mention my name. This is the only asset we have. How difficult is this and how long does this probate take?
You have no choice but to probate the will and administer his estate. No one can act for an estate until letters testamentary are given to the executor/rix. Once appointed by the court they can act for the estate. You have no more power to transfer this property than I do. So get with an estates attorney to assist you in this matter. It should not cost alot if this is the only asset. There are many good FL estates attorneys who regularly contribute to this forum.
Finally, the gain on the property should be quite low if at all since you will get a step up in basis to the date of death value. Note however that if sold at a loss you cannot take a deduction for losses on the sale of a primary residence.
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Elder Law Attorney
How unfortunate that you will have to do this! It is unusual for someone to have to probate an estate for their spouse. But, since the home was in your husband's name alone, you will. It is not necessarily difficult but has several procedural steps you and your attorney must follow. Your attorney can give you a better idea of timing once he or she reviews your husband's last will. When the only asset is the home, one may be able to do a shortened version of probate called a summary administration. It usually takes less than a few months start to finish.
Florida Attorney practicing in areas of Estate Planning, Elder Law, Trusts and Probate www.HillLawGroup.com The information provided is for educational purposes and not intended to provide legal advice or to create an attorney client relationship.
There's an issue that no one is raising. The out of state attorneys who obnoxiously answer Florida questions without knowing what they are talking about always make this mistake, which would be malpractice if you were a real client.
The issue is that the house was your husband's homestead, and there are special rules regarding the disposition of the homestead upon death.
You need to see an attorney, and if they don't bring up the homestead issue, you need to see a different attorney.
Elder Law Attorney
If your husband died two years or more ago you can probably do a summary administration for that asset, i.e., the house in Florida. A summary administration can be accomplished in less than 2 to 3 months if there is no complications. You mentioned that there was a will but you are not clear as to whether or not it was witnessed by two individuals. If it was not witnessed by two individuals then it is not valid as a will here in the state of Florida. If he did not have a will then the property would pass through the laws of intestacy. That would depend on his status as a parent at the time of his death. If he had no children and never had any children then the surviving spouse would receive the whole house. If there were children then the share of the surviving spouse is adjusted depending on whether the children were children of both the decedent and the surviving spouse or just the decedent. It is not a difficult process but it is one which would require an attorney.
Following up from my post before.
Everyone got the answer wrong.
Your husband's house was what is known in Florida as his homestead. The homestead is not subject to devise (meaning it can't be left by will) and passes outside of probate.
If your husband had any children, whether they are yours or not, then you receive what is known as a "life estate" in the house. The remainder goes to his children.
There could be issues regarding the title and the mortgage so you still need to see an attorney though.