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Category: Probate Estates

  • Marriage Penalty Removed for Conveyances Between Spouses

    Question: My wife and I purchased a property before we were married. How can we protect the property now that we are married in case something happens to one of us?

    This is a question that we are asked frequently by our clients. Married couples in the State of Florida take title to property as tenants by the entireties (TBE). The generally accepted language for taking title is “John Doe and Jane Doe, husband and wife.” Under Florida Law this implies TBE and offers the protections from creditors of one or the other spouse in addition to constitutional protections if the property is a principal residence.

    When you purchase a property prior to marriage you take title as co-tenants (similar to a partnership). The default language for taking title between non-spouses is “John Doe and Jane Doe” or “as co-tenants.” Under Florida Law this assumes each owns fifty percent of the property. This has certain implications for survivorship and devise, especially if the heirs of each of the co-tenants is not the same. There are other ways to hold title between non-married individuals such as “joint tenants” which are outside the scope of this article.

    In Florida, we have no State income tax, but we collect other taxes such as sales and use tax and conveyance taxes on the transfer of real property; called documentary stamp taxes (also referred to as doc stamps). These doc stamps are calculated on the consideration of the transfer or the amount of any mortgage or other indebtedness encumbering the property.

    Prior to July 1, 2018, a married couple could correct the title to property to reflect their holding title as a married couple (TBE) without a conveyance tax, if the transfer was done within one year of the marriage. Outside of that, there was the potential for doc stamps on the consideration.

    Recently, the Florida Legislature has fixed this “marriage penalty” by allowing a married couple to transfer property between themselves without doc stamps. Seems fitting since there was already an exemption for transfer tax subsequent to a dissolution of marriage. Real estate law practitioners had been lobbying the legislature to make this fix for many years. If you want to read the specifics you can review Section 201.02, Florida Statutes (2019).

    A real estate attorney is your friend when it comes to issues like this. There are too many ways to create inadvertent title issues with the use of an online or office supply store form. Rarely do the forms give accurate advice to make sure your conveyance conforms with Florida Law. If you need help with fixing the title to your property to make sure it reflects a subsequent marriage, please get it touch with our office.

    This article is one in a series based on questions we frequently get from our clients. It is accurate as of the date of publication, however the law changes. You should rely on the advice of a knowledgeable attorney in order to make sure you are getting the most up to date information.

  • Broward Ancillary Probate Administration

    When a non-resident of Florida dies owning property in Florida the process of passing it their heirs is called an Ancillary Probate Proceeding also known as an Ancillary Administration. This is a procedure to bring a subsequent probate administration in order to transfer title of the Florida real estate or other assets located in Florida. It is only permitted where an original probate proceeding has been completed in another state or country where the deceased person resided at the time of their death. Because Florida is the nation’s capital for vacation home or timeshare properties an ancillary probate proceeding is fairly common.

    The Florida Ancillary Probate Administration works similarly to an original probate proceeding except that the only assets of the ancillary probate proceeding are the Florida property, timeshare or other assets located within Florida. The distribution to beneficiaries may be subject to the primary court’s direction of the estate’s heirs and their shares.

    In order to start a Broward Ancillary Probate or a Palm Beach Ancillary Probate we need exemplified or authenticated copies of the probate proceeding from the jurisdiction of the deceased’s domicile state. Exemplified or authenticated (sometimes referred to as three-way certificate or triple certified) documents sometimes vary by the jurisdiction they originate from, however they are documents that have been certified by two clerks and a judge, each attesting to the document’s authenticity and validity.

    If the plan is to sell the Florida assets it is preferable to begin the Florida Ancillary Probate as soon as possible. This avoids a delay in the closing when the buyer must wait for the Broward Ancillary Probate or a Palm Beach Ancillary Probate to be completed before the sale can close.

    Please call the office to speak with someone regarding your Broward Ancillary Probate or a Palm Beach Ancillary Probate. We can review your particular circumstances and give you an idea of what will be required and the time it will take to complete. Most times we can handle everything by phone, mail or electronically, although we wouldn’t blame you for visiting sunny South Florida in person.

    The Law Offices of Oates & Oates, P.A., has been assisting clients with their probate needs since 1978. Please call and speak with Thomas D. Oates to see whether we can help you as well. You can reach me or one of my staff by phone at 954-942-6504. We look forward to speaking with you.

  • Broward Probate Rules Update

    Broward County Probate division recently announced new filing requirements for all testate and intestate petitions for administration. Specifically, the Circuit has adopted two new required filing forms. They are an Affidavit of Heirs to be filed in all intestate cases (formal and summary administrations) and an Affidavit Regarding Criminal History to be filed in all testate and intestate cases (formal and summary administrations). Just as was the case when the Broward Probate Courts mandated electronic filing, there will be a period of adjustment where some practitioners will learn of the new filing requirements only after receiving a rejection memo from the Broward Probate Court staff attorneys. This can obviously lead to unnecessary delays in the administration of estates.

    If you have a Broward County Probate matter please rely on the services of a knowledgeable firm such as Law Offices of Oates & Oates, P.A. We’d love to speak with you about how our firm can help.