Florida Probate Litigation Lawyer Blog
Vehicles often comprise part of a person’s estate after they pass. It is sometimes possible to distribute vehicles very soon after a person’s death, sometimes even without an order from the probate court.
If the beneficiary of the vehicle is either the surviving spouse, or, if there is no surviving spouse, the children of the decedent and the decedent was domiciled in Florida at the time of death, the beneficiary may have a right to have the vehicle designated “exempt property.” Fla. Stat. §732.402(1). Exempt property is protected from all claims against the estate, except secured interests on the property itself, and can be distributed directly to the surviving spouse or children after the court authorizes the designation of the property as exempt. Fla. Stat. §732.402(3). A vehicle can be designated as exempt property by filing a Petition for Determination of Exempt Property with the probate court. Fla. Prob. R. 5.406. Up to two vehicles can be designated as exempt property if individually they (1) weigh less than 15,000 pounds, (2) are held in the decedent’s name, and (3) were regularly used by the decedent or members of the decedent’s immediate family as their personal motor vehicles. Fla. Stat. §732.402(2)(b). If a surviving spouse or children of the decedent do not file a petition for determination of exempt property on or before the later of the date that is four months after the date of service of the notice of administration or the date that is forty days after the date of termination of any proceeding involving the construction, admission to probate, or the validity of the will or involving any other matter affecting any part of the estate, they will be deemed to have waived their right to the exempt property status. Fla. Stat. §732.402(6). After a court authorization, the exempt property may be distributed directly to the surviving spouse or children.
Whether the vehicle can be considered exempt property or not, a request for a transfer of title must be filed with the Tax Collector’s Office in the county in which the decedent resided. If the owner of the vehicle died intestate, the heir may file an Application for Certificate of Title with/without Registration (Form 82040) with an affidavit that the estate is not indebted and the surviving spouse, if any, and the heirs, if any, have amicably agreed among themselves upon a division of the estate to the Tax Collector’s Office in the county in which the decedent resided. Fla. Stat. §319.28(1)(b). If the owner of the vehicle died testate, the heir may file Form 82040 with a certified copy of the will, if probated, and an affidavit that the estate is solvent with sufficient assets to pay all just claims or, if the will is not being probated, by a sworn copy of the will and an affidavit that the estate is not indebted. Fla. Stat. §319.28(1)(b). The heir, regardless of whether the owner died testate or intestate, must surrender the prior certificate of title or, when that is not possible, present a satisfactory proof to the department of ownership and right of possession to such motor vehicle, and upon payment of the fee prescribed by law and presentation of an application for certificate of title, the department may issue to the applicant a certificate of title. Fla. Stat. §319.28(1)(a). Forms for download may be located on the Department of Highway Safety and Motor Vehicles’ website, www.hsmv.state.fl.us.
The vehicle insurance policies should also be examined to determine whether they terminate on the death of the insured or whether they would continue to protect the estate in the event of an accident. If it is a family policy, included members of the family would be protected. If the policies terminate on the death of the insured, it is strongly recommended that the vehicle not be used until title is transferred and new insurance is obtained.
If you or someone you know has questions about distributing or transferring assets of a decedent, please do not hesitate to contact the law offices of Chepenik Trushin LLP. The experienced attorneys at Chepenik Trushin are ready, willing, and able to assist with your estate planning and probate needs. Please feel free to contact us for an initial consultation.
