Do I need to go through probate?

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William Burgess

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My mom and I were both granted at the same time a piece of property together. The quit claim deed is both her name "and" my name, not "or" and we have equal shares. My mom passed recently and I was told to call the Property Appraiser's office to find out about it. A lady told me we would be tenants in common but after further looking into it that doesn't exactly line up. I saw too that joint tenancy creates Right of survivorship based on it being a joint tenancy and had 4 stipulations to it that this situation lined up with perfectly. I also found out that joint tenancy is not only something for married couples as I was told by someone else. What would I need to do or if there is any other info I need to provide I can. Thank you.
 
You'll need to probate the property.

Tenants in Common (TIC) is the default. To have right of survivorship, the deed must state "joint tenants with right of survivorship" according to the following statute:

Statutes & Constitution :View Statutes : Online Sunshine

Depending on the value of the property, the estate may qualify for summary administration (faster and less formal).

Statutes & Constitution :View Statutes :->2019->Chapter 735 : Online Sunshine

Check with your local probate court for forms and instructions for summary administration, if the estate qualifies. You might be able to do it without a lawyer.

If not, to a lawyer you go.
 
I was reading into this summary administration and something else popped up. The house we live in is under homestead exemption. How does that affect this process?
 
Short answer - It doesn't.

Long answer - When a person dies and has debt, the estate must pay those debts, to the extent that it has assets to do so, before the heirs get anything. If there isn't enough money to pay the debts, assets have to be sold or they can be attached by creditors. Some assets are exempt from attachment by creditors and some are not. In Florida a person's primary residence is exempt because it says so in the Florida Constitution Article X, Section 4:

The Florida Constitution - The Florida Senate

In determining whether your mother's estate qualifies for Summary Administration you would just have to figure out what the value is of her half interest in the property and add that to any other non-exempt assets.

There is another type of homestead exemption and that has to do with the freezing or lowering of property taxes for the elderly, which is probably not an issue unless you are already in your 60s.
 
Well, another thing I would ask is with probate who do you think the house would go to? I own half, she has a surviving spouse (my dad) and she has a son, that him and I do not share the same dads. He is my dad's step-son. My dad has already told me he wants me to have it because that's what my mom wanted but I'd like to have an idea so I can potentially prep all of this in advance. There's no need to have to potentially go through the same thing twice or anything unnecessary. Thank you too for you outstanding explanations and your extremely helpful way of explaining things.
 
William Burgess said:
I saw too that joint tenancy creates Right of survivorship based on it being a joint tenancy and had 4 stipulations to it that this situation lined up with perfectly.
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Please elaborate as to what you mean by this.

Did the deed convey title to you and your mother "as joint tenants [with right of survivorship]." Or was it silent beyond identifying you and her by name?

William Burgess said:
The house we live in is under homestead exemption. How does that affect this process?
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It doesn't.

William Burgess said:
who do you think the house would go to? I own half, she has a surviving spouse (my dad) and she has a son, that him and I do not share the same dads.
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If there is no joint tenancy, then your mother's interest in the house is part of her estate. The liquid assets of her estate (i.e., cash and cash equivalent) will be used to pay her debt. If she doesn't have sufficient liquid assets to pay her debts, then non-liquid assets would need to be sold or otherwise used to pay debt. Anything that remains passes according to the terms of her will or Florida intestate law.

If we assume that your mother did not have a will (and if that's not a good assumption, please say so), then her net estate is divided as follows: 1/2 to her surviving spouse and the other half to her surviving descendants (i.e., you and your half-brother).
 
William Burgess said:
My dad has already told me he wants me to have it because that's what my mom wanted
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If your mother died without a will then what your Dad wants or what your mother "wanted" is irrelevant.

Taking Z's comments further, and also assuming no will, you retain your 1/2 interest in the property, your Dad, you and your stepbrother each get 1/3 of your mother's half interest. Of the total value of the property you then have 4/6 and your Dad and stepbrother each have 1/6. Your Dad can quitclaim his 1/6 directly to you, giving you 5/6 ownership. Your stepbrother has 1/6 ownership and will be entitled to collect rent from you in the amount of 1/6 of the Fair Rental Value, or you can buy out his interest if you have the money.

Now, did your mother leave a will or not? If yes, to whom did she leave her ownership interest in the property? If no, then your stepbrother is destined to be your minority partner in the ownership of the house.
 
adjusterjack said:
Taking Z's comments further, and also assuming no will, you retain your 1/2 interest in the property, your Dad, you and your stepbrother each get 1/3 of your mother's half interest. Of the total value of the property you then have 4/6 and your Dad and stepbrother each have 1/6. Your Dad can quitclaim his 1/6 directly to you, giving you 5/6 ownership. Your stepbrother has 1/6 ownership and will be entitled to collect rent from you in the amount of 1/6 of the Fair Rental Value, or you can buy out his interest if you have the money.
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A couple things here. First, it's not necessarily correct that the property would get divided according to the interests. It's possible that the entirety of the deceased mother's interest could go to the OP, with the OP's father and half-brother (not stepbrother) receiving other assets. Many other things could be done. Second, the math is wrong. If we assume that the mother's interest in the house gets divided among the three persons mentioned, that division would not be in even thirds. The OP's father would get 1/2 of the mother's 1/2 interest (i.e., a 1/4 interest). The other 1/2 of the mother's 1/2 interest gets divided between the OP and the OP's half-brother. That would leave the OP with a 5/8 interest, the father with a 1/4 interest, and the half-brother with a 1/8 interest.
 
Short answer for now, my mother did not leave a will and did not have any debt. There was an article I was trying to pull up to try to show what I had read but that's probably irrelevant as well. *Edit* Found what I was looking for right after I posted this. The four things I was speaking about earlier was as follows:
At common law, four unities are required to create joint tenancy with right of survivorship:

  1. Unity of time: The property interests of all joint owners must be conveyed at the same time.
  2. Unity of title: The property interests must be conveyed in the same instrument.
  3. Unity of interest: The property must convey the same interest to the joint owners.
  4. Unity of possession: The property must convey a common right of possession or enjoyment.
Now, I don't understand all of this, and it did say in this article that it varies state by state of course. It also says in common law, so again, not sure if it applies to the situation at hand.
 
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William Burgess said:
sure if it applies to the situation at hand.
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Your suspicions, as to the relevance in the instant matter under discussion, should make you tingle; as they are "spot on".
 
William Burgess said:
Short answer for now, my mother did not leave a will and did not have any debt. There was an article I was trying to pull up to try to show what I had read but that's probably irrelevant as well. *Edit* Found what I was looking for right after I posted this. The four things I was speaking about earlier was as follows:
At common law, four unities are required to create joint tenancy with right of survivorship:

  1. Unity of time: The property interests of all joint owners must be conveyed at the same time.
  2. Unity of title: The property interests must be conveyed in the same instrument.
  3. Unity of interest: The property must convey the same interest to the joint owners.
  4. Unity of possession: The property must convey a common right of possession or enjoyment.
Now, I don't understand all of this, and it did say in this article that it varies state by state of course. It also says in common law, so again, not sure if it applies to the situation at hand.
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Read post number 2 again. If the deed does not read "joint tenants with right of survivorship", then it's not.
 
Well, that's the reason I was wondering because the property was signed over to both of us at the same time, on the same deed, and it was to both of us for 100% (or maybe it's considered 50% but either is still the same interest at same time, on the same deed) so I thought due to it being worded my mom's name and mine, not or, and the common right of possession of enjoyment I wasn't sure about but it was for both of us to live in. The reasoning for it was because at the time my dad was drinking and my mom and dad were both together but fought a lot. My grandma and grandpa didn't want him to get it, maybe because of the drinking and stuff like that. We needed a place to live so it was signed over to both of us at the same time, on the same deed. I had heard that created joint tenancy and that when that was created like that it automatically granted right of survivorship Maybe I'm wrong and that is just wishful thinking.
 
William Burgess said:
Well, that's the reason I was wondering because the property was signed over to both of us at the same time, on the same deed, and it was to both of us for 100% so I thought due to it being worded my mom's name and mine, not or, and the common right of possession of enjoyment I wasn't sure about but it was for both of us to live in. The reasoning for it was because at the time my dad was drinking and my mom and dad were both together but fought a lot. My grandma and grandpa didn't want him to get it, maybe because of the drinking and stuff like that. We needed a place to live so it was signed over to both of us at the same time, on the same deed. I had heard that created joint tenancy and that when that was created like that it automatically granted right of survivorship Maybe I'm wrong and that is just wishful thinking.
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Did you read the law????

EDIT: You probably didn't, so here it is:

689.15 Estates by survivorship.—The doctrine of the right of survivorship in cases of real estate and personal property held by joint tenants shall not prevail in this state; that is to say, except in cases of estates by entirety, a devise, transfer or conveyance heretofore or hereafter made to two or more shall create a tenancy in common, unless the instrument creating the estate shall expressly provide for the right of survivorship; and in cases of estates by entirety, the tenants, upon dissolution of marriage, shall become tenants in common.

(emphasis added)
 
Ok. Then no further discussion is needed. I'll handle it the way it needs to be handled and go from there. Also, no, I didn't read the entire law because I don't have the time to sit around and read all of this stuff. That's why I come here when I need to discuss legal matters, like you do on a legal forum. Not too keen on people being a bit condescending when intentions are discussed. I am fully aware of how much weight intentions hold when things weren't handled accordingly to behind with. Maybe I read that wrong but it would be an easy mistake to make. No offense meant by it. Good day to you all, and thanks again.
 
William Burgess said:
Also, no, I didn't read the entire law because I don't have the time to sit around and read all of this stuff.
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Had you read the LAW that was posted (less than 90 words), you would have spent a LOT less time.
 
William Burgess said:
Now, I don't understand all of this, and it did say in this article that it varies state by state of course. It also says in common law, so again, not sure if it applies to the situation at hand.
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I had a feeling that was what you were referring to. Suffice to say that the "four unities" are largely vestiges of the past.

You still haven't told us what the deed says. A quote (with names changed or removed) would be helpful.
 
Zigner said:
Had you read the LAW that was posted (less than 90 words), you would have spent a LOT less time.
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Not necessarily. I wasn't aware of exactly what it applied to, and wasn't aware of how this all fits together so I still would have had to refer back to here. I would like to say too that while I appreciate the help, I don't appreciate the attitude. Please just go help someone else because I don't want to deal with you any further. Times are difficult enough without someone getting all high and mighty and wanting to stir the pot. Sure, you might know the law a little better than most but I just hope with the way you've dealt with this that you find a subject you know little about and someone is there to make you feel the same way. Anyways, getting off topic.

I'll find the info needed on the deed and get back here with it.
 
William Burgess said:
Not necessarily. I wasn't aware of exactly what it applied to, and wasn't aware of how this all fits together so I still would have had to refer back to here. I would like to say too that while I appreciate the help, I don't appreciate the attitude. Please just go help someone else because I don't want to deal with you any further. Times are difficult enough without someone getting all high and mighty and wanting to stir the pot. Sure, you might know the law a little better than most but I just hope with the way you've dealt with this that you find a subject you know little about and someone is there to make you feel the same way. Anyways, getting off topic.

I'll find the info needed on the deed and get back here with it.
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The attitude is a value-added extra.
 
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