A single Dad dies without a Trust/Will (intestate), but owns a home. One of his children would like to keep the house. Is this a possibility? Yes, but it may not be an easy feat. Assuming the house is paid off and there are no other debts* to the estate, the property will belong to the heirs. Each will receive 25% ownership of the home. Upon the death of Dad, the property will automatically vest to the heirs who can:
- sell their 25% share; or
- give away their 25% share (not likely); or
- sell the home wherein each heir will receive 25% of the sales price, less expenses, at closing
What if the siblings do not get a long? Would if more than one wants to keep the house? Unrest and possible litigation can extend the closure process and irrevocably damage the family relationship.
* Note that Florida is unique in that it provides for the constitutional “homestead” for the owner if the home is the owner’s actual primary and personal residence, protecting it from claims of creditors. If the owner has a spouse, then the spouse can elect to take a life estate in the home or a one-half interest therein. If there are minor children, they would be entitled to the other half-interest should the spouse take that election. If the owner dies with no surviving spouse, then the adult children will receive their statutory equal share, absent the existence of a Trust/Will.
In this situation, hiring an experienced estate attorney is strongly suggested. Such an attorney works on behalf of the estate, advises of options for each circumstance and assist in facilitating a distribution plan. The first step of the estate administration process is to begin the probate process. Probate determines if a will is valid. The administration then proceeds in identifying and taking inventory of the deceased’s belongings, has the home appraised, pays debts and taxes and distributes the remaining property. Estate administration (probate) can be a long and expensive process but can be avoided and/or reduced by leaving a Trust/Will and naming a Successor Trustee and Personal Representative.
Had Dad died leaving a Trust/Will, then the instructions would have been left and recipients would receive designated assets, including real and personal property and/or instructions on how Dad’s property would be divided and distributed. In addition to property, a Trust/Will encompasses naming a Trustee or Guardian for minor or incapacitated children, financial trusts, preparation for disability, inheritance tax, financial distribution and charitable donations. Leaving a Trust/Will is a final gift you can give your family reflecting your intentions and removing any potential problems between surviving family members. A Trust/Will should be made with a sound mind and heart as there is no substitute for planning before an unexpected event happens.
Ronald A. Luzim, a former estate and tax attorney with the IRS has been practicing law since 1974 and specializes not only in estate planning but real estate, family law, asset protection and bankruptcy. Please contact his Coral Springs office at 954-755-1500 for assistance in protecting yourself, family and property.