I’m constantly in shock with how much bad advice there is out there and how many attorneys are practicing probate without knowing even the simplest of rules. Take this case I took over about a year ago… Names and identities have been changed to protect the *innocent*.
A son and daughter lost their father. Let’s call the son, David, and the daughter, Elisa, (weird names, I know… but hey, I take inspo from real life :::cough cough, they’re my kids’ names, cough cough:::). David and Elisa’s father, Angel, died. Angel was married to another woman who was not David and Elisa’s mom (gasp! how dare he!). Anyway, her name was Marlene. Shortly after Angel died, Marlene, suffering from extreme heartbreak, also died.
Angel owned a property. He purchased this property before he married Marlene and never put Marlene on title. (for purposes of this example, we are going to assume the house is not their main residence but an investment property that was rented out). So Angel died back in 2018 intestate and Marlene died in 2020 (unrelated to Covid, as previously mentioned) having properly executed a Last Will & Testament and leaving David, Elisa, and Gabriela, her niece, as beneficiaries of her estate.
David and Elisa hire Fulano Detal, a purported-probate attorney, who advises them that they cannot sell the house until the probate is over. Fulano disappears (it wouldn’t be the first time I see this happen). Fast forward to 2022, David comes to my office and tells me: “I have been paying the taxes and insurance on this property and I really want to just get it in our names so we can sell it. I’m not sure where Gabriela is but I think Elisa may know. How long until we can get the Court to distribute the property? Oh and will I ever get reimbursed for these expenses??”
I take a few deep breaths and I tell this sweet young man, “No, David. We are not going to wait until the Court distributes the property. We are going to ask for it to be sold ASAP. Let’s get a trusted realtor on board and get the property on the market ASAP. As soon as we have a viable contract, we will submit the appropriate pleadings with the Court, notice everyone, and get the property sold. We will hold the net proceeds in the estate’s restricted account, which is a checking account in the name of the Estate that is protected by Court order, and then we will ask for you to be reimbursed. Oh and don’t worry about paying me any attorneys’ fees right now. I will wait until the property is sold to get paid. I’m sorry you were given bad advice.”
David sounded SO relieved.
And that’s what we did. Within a few months, we obtained the Court’s approval to sell the property, reimbursed David for the thousands he had spent over the prior 4 years in taxes, insurance and property maintenance, and before the end of the year, distributed his father’s estate according to Florida’s laws of intestacy.
But wait… what happened with Marlene’s interest in the property and her estate?? Ah, my friends, we will save that for another day. Fret not, once I tell the rest of the story, I’ll put a link here.
Until then,
Your trusted Probate, Guardianship, & Estate Planning Attorney…
