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If my husband died without a will, can our home still go into probate?

Pensacola, FL |

My husband died without a will. His name was the only one on the property deed. I have a Life Estate in the home. My husband has a daughter who has the other interest in the home, after I die. Can his daughter still take this property through probate and what happens to the property if so?

My thinking is that Probate is a process to establish or prove a Last Will is legal. I'm I right about this?

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Attorney answers 5


An estate goes through probate whether there is a will or not. Where someone has had the foresight to execute a will, then the will is filed and probated. Where there is no will, the estate is still administered through the probate court, unless there is a valid trust or other mechanism for conveying the interest. I highly recomend seeking legal counsel. Stating that the husband is the only one "on the property deed" but going on to say that you have a life estate and that his daughter has "the other interest" indicates that there is much more going on either in your thinking or in some papers somewhere. You can not afford not to obtain legal assistance at this time.

This answer is provided for informational purposes only. Actual legal advice can only be provided in an office consultation by an attorney licensed in your jurisdiction, with experience in the area of law in which your concern lies.


The answer depends on the state where you live and where the property is located. In Idaho, you need to do nothing. Upon your death the daughter can record an affidavit along with a certified copy of your death certificate and the death certificate of your husband. That will be sufficient to change the name on the deed to the daughter's name.

The probate process is state specific. Some assets that have beneficiary designations, such as life insurance or IRAs, do not need to be probated. This is also true for bank accounts that are designated to be "paid on death" to someone after the owner of the acocunt dies. The probate process means someone petitions the court (the petitioner) to be appointed to handle the affairs of the deceased person. The petitioner can be the person named in the will or if there is no will, then an interested person, as defined in the state laws, can be the petitioner.

To get the answers to your questions it would be good to talk with a local estate planning attorney.


Probate is the process by which the state administers the estate to make sure that all debts are settled before the estate passes to the beneficiaries. Your husband died without a will, in which case the intestate laws of the state he lived in would govern. In Florida, the governing statute is 732.101. You should consult with a probate attorney right away.

THESE COMMENTS ARE NOT LEGAL ADVICE. They are provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction. Answering this question does not create an attorney-client relationship or otherwise require further consultation.


A review of the deed by a Florida attorney would be necessary to determine if your life estate was created by the deed or by operation of law due to Florida's constitutional homestead language. If your name is not on the deed, then it is likely that a probate case will neeed to be initiated. Again, I recommend that you contact a Florida licensed attorney to get a definitive answer to your question.


Probate often involves a will, but that is not always a case. The probate process includes a determination of whether or not there was a will, whether any wills or codicils are valid, and the appointment of a personal representative to gather the decedent's property that requires probate, pay creditors and expenses, and distribtue the rest to the rightful persons. If there is no will, the process is almost the same, but Florida law determines who should serve as personal representative and who should get the probate assets. In short, if you need a court order to prove ownership, you need some form of probate.

If the home was your husband's primary residence and the title was in his name alone, the Florida Constitution treats the home in a special way. The Florida Statutes say you get a life estate and your husband's "lineal descendants per stirpes" get the remainder interest. If your husband had only one child, then she gets the remainder interest.

You do need probate to obtain a court order determining that your husband did not have a will, that the home was his primary residence, and that you were married when he died. You'll need this order to purchase insurance, obtain the property tax homestead exemption, register utilities in your name, and handle other things as the homeowner. The tough part will be working with your husband's daughter. There are very complicated rules about who pays the mortgage, property taxes, insurance, and maintenance expenses. You need an experienced lawyer to sort this out.

The advice you get can avoid a lot of problems for you down the road. Based upon the facts you provided, it looks like probate will be necessary and it may be better to get this down now, rather than wait until later when circumstances might be much more complicated.

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.

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