By: Kevin R. Albaum and Anthony A. Velardi
Clark, Campbell, Lancaster & Munson, P.A.
Q: The Personal Representative (Florida’s term for an Executor) of my father’s estate is selling my father’s home to a family member. What is the process for this transaction, and should the probate attorney or a title company handle the closing?
A: As an initial matter, the probate attorney should review your father’s Last Will and Testament and determine whether the Personal Representative has the power to sell the home. The probate attorney should ensure that all individuals with an interest in the home have agreed to the transaction and sale price before proceeding with the closing. The probate attorney will need to confirm that there is no surviving spouse or minor child that may have retained homestead rights to your father’s home. A written agreement between estate beneficiaries may need to be drafted by the probate attorney in some circumstances in order to comply with Florida law.
For closing on the transaction, there are multiple benefits to using a probate attorney (if also a title agent) over a title company. The probate attorney is licensed by the Florida Bar and can therefore provide legal advice. Unless the title company has a licensed attorney on staff, the title agent cannot provide legal advice. Keeping the existing probate attorney also ensures that the law firm closing the transaction is aware of the history of the estate and any possible homestead issues and creditor claims against the estate. As the probate attorney is personally handling the estate, he would easily be able to obtain and record various legal documents when needed such as the Letters of Administration, Order Admitting Will to Probate and Order Appointing Personal Representative, and the Affidavit of No Florida Estate Tax Due, if filed.
Although title companies may charge less than attorneys to handle a closing, our experience is that the costs are often comparable.
The November 5th edition of “The Law” will discuss land trusts and whether to use them when purchasing property.
Kevin Albaum is an estate planning and elder law attorney, and Anthony Velardi is a real estate attorney and title agent, both with the law firm Clark, Campbell, Lancaster & Munson, P.A., which offers probate, real estate title and closing, and other services. Questions can be submitted online to firstname.lastname@example.org.