PROBATE: WHY CAN'T I GET MY MONEY?
When a person dies leaving assets in his/her estate, generally the family needs to begin the probate process to determine the heirs and clear title.
Why is probate needed?
I joke around that dead people do not sign deeds. But in Miami, I have had several cases of fraud where a deed was allegedly signed by the deceased.
Recently, a closing agent tried to close and noticed that I filed a probate case and contacted me about the fraudulent deed.
Normally, the issue pops up when the owner of the property died.
For real estate, the title company will require either an Order Determining Homestead or a Court Order authorizing the Sale or Distribution of the Property.
Also, banks, securities firms, insurance companies will require court orders to distribute the funds, unless the beneficiaries received it by transfer on death, payable on death, or beneficiary forms.
In many cases, my clients are confused by the institutions that keep requesting letters.
They think I can write a letter and resolve their issues. Unfortunately, I don't have that kind of power. The bank or other institutions are really asking for letters of administration which is the order that opens the estate in probate court and appoints the personal representative (in some other States called the executor).
Does the property still need to be probated if there is will?
Yes. If there is a will, a probate case still needs to be opened to settle the estate, and ultimately being able to convey good title in the case of real estate or get an order of distribution.
Why an Order Determining Homestead for real estate?
If the property is determined to be the homestead property of the decedent,
it not only provides good title to the heirs but also protects the property against creditor claims. The property can then be sold by the heirs.
You may have heard that probate will take a long time.
The probate process can take some time to get the Court Orders.
However, I have had several cases recently where I obtained the Orders needed for closing in less than 6 months and in one case, less than 4 months.
I do not just mail it in, I follow up and make sure the case progresses in order to avoid unnecessary delays.
The earlier the probate case is filed, the faster the heirs will get their inheritance.
Unlike fine wine, I find that delays normally will not make any pending issues better or solve them.
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