Legal Question in Wills and Trusts in Florida
Mom's will cannot be found. The condo was in her maiden name bought from selling another condo that parents lived in, a marital asset. Dad passed away fews years after mom did. Dad's will mentions mom had a will and he and brother were the beneficiary. The property was not transferred in Dad"s name. Brother passed away before Dad, Brother"s wife and children paid all the condo fees due and taxes, Dad's will gives his share to the brother"s children. They want the sisters to sign a deed of release giving up the rights but have not mentioned the will in it. They do not want to go through probate as it is tedious and expensive. The sisters are not comfortable with the Path chosen. They have no interest in the property but do not want to omit the will, from the release.deed Is probate mandatory in this case? Is it cosidered a fraudulent transfer if the will is not mentioned in the transfer
4 Answers from Attorneys
No attorney will be able to answer this question without reading the documents you mentioned. My recommendation is that the family members who need the benefit of an attorney's advice, hire an attorney.
You cannot avoid probate to clear the title to the property. The documents that you do have will control how that happens. In order to clear legal title to the property probate of both Estates is required based on these facts. Seek legal help as suggested by Mr. Kaufman.
I agree with both Mr. Kaufman and Mr. Stein. You may even need to do multiple probates to clear the title, but until the will and the past deeds to the property are examined, it is impossible to say exactly what steps will need to be taken. Be sure to consult an attorney who practices in the area of probate administration.
The condo appears to be homestead real property. This is tricky stuff in Florida. However, no one can pass valid title to the property without at least probating mom's estate. When a Will can't be found, it is presumed to be destroyed with the intent to revoke. You can rebut this presumption with a copy of the Will and some valid evidence as to why the original can not be located. Otherwise Mom's probate will proceed as intestate (without a valid will). If that is the case, from the limited facts you have provided, Dad might only have had a life estate in the condo. The remainder interest would vest in their children upon Dad's death (the Will won't matter as he only had a life estate and the answer is different if Mom had children that were not also Dads - think second marriage). An examination of the Wills and Deeds would be needed to more accurately determine who may be entitled to the property as a result of probate of one or both estates. But, probate is the only way to resolve this and transfer clear and valid title.
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