Does the property need to go through probate?

You need to see a probate attorney. When your husband passed away, you became the owner of a life estate and your husband's daughter because the owner of the remainder interest (if she was the only child). Your ownership is measured by your lifetime. It is a distinct interest. You can't get a deed. Instead, you need probate, which includes a procedure to obtain an order determining that (1) the home was your husband's primary residence, (2) that you were the surviving spouse and his daughter was the only child, (3) that the home is protected from the claims of your husband's creditors. This order carrys the same weight as a deed and can be relied upon in obtaining the homestead property tax exemption and selling or mortgaging the property. You also might need it to get insurance or utilities in your name. Florida law provides that the owner of the life estate is responsible for the taxes, mortgage interest and ordinary maintenance. The remainder person is responsible for the principal portion of the mortgage and any long-term repairs. This creates a tough situation. Florida law currently provides no way for either of you to force the other to sell. A partition action is not available between the holder of a life estate and the holder of the remainder interest. If you decide to sell, you both need to sign the closing documents and the two of you will have to agree upon how the sale proceeds are divided. The handling of the sale proceeds creates some very, very complex tax issues, so you reallly need an experienced attorney to help you. The IRS regulations provide a way to value a life estate based upon the person's current age, special interest rates set by the IRS, and the value of the property. Your share could be more or less than 50% depending upon those factors. If you leave the house, you could still be held responsible for various things based upon your ownership. You might not be responsible for the mortgage if you did not sign the promissory note at the closing, but you should get some proper legal advice before you consider just walking away. My comments are not intended to establish an attorney-client relationship, are not confidential, and are not intended to constitute legal advice. Proper legal advice can only be given by an attorney who agrees to represent you, who reviews the facts of your specific case, who does not have a conflict of interest preventing the representation, and who is licensed as an attorney in the state where the law applies.

I agree with Mr. Goethe's response. If it has been more than 2 years since your husband's death you can Petition for Summary Administration (a less expensive and less timely form of probate). Since there is more than one beneficiary (you and his daughter), an attorney is required per Florida law. Should you have further questions, please feel free to contact me. Douglas R. Coenson, Esq. [email protected] (561) 315-2120 Jupiter, FL