When a homeowner dies while a foreclosure is still pending on their property, Florida law requires the foreclosure to resolve before moving forward with any probate or estate matters.
Even after a foreclosure has been resolved, co-owners of a property may disagree on how they want to move forward as benefactors. Some may want to sell a home, while others may want to keep it in the family.
For the courts to resolve these disagreements, co-owners have two options for filing under Florida statutes:
- Partition action
- Partition of heir’s property
Understanding how partitions work in estate law will help you know what rights and remedies exist under Florida law if you’re involved in a dispute.
What happens when a property owner dies during a foreclosure?
When a property owner dies in Florida, anyone who stands to inherit the title must first wait for the foreclosure matter to be resolved.
Florida law protects a decedent’s property, regardless of whether they left a will or not.
Whenever someone dies in Florida, any of their solely owned property gets transferred to an estate and remains there until the courts can determine the next course of action.
Before any property is distributed, the foreclosure must no longer be active.
Can I delay a foreclosure?
Florida foreclosure courts are often slow, and foreclosure cases have many moving parts. This means that a matter can take months or even years to resolve.
Because of the pending foreclosure, any probate-related issues may be delayed.
Foreclosures must be settled between the estate’s executor, creditors, the foreclosing bank, and any beneficiaries waiting for the probate to close.
Under these conditions, the parties may choose to:
- Pay-off the mortgage
- Seek a mortgage loan modification
- Sign a deed in lieu of foreclosure
- Complete a short sale
- Allow the foreclosure to go through
It’s largely up to the parties to decide what action to take. The foreclosure could be delayed purposefully, or a decision can be made to resolve the matter quickly.
Partition Actions Explained
When two or more beneficiaries of a property cannot agree on what to do with it, Florida courts allow for any party in disagreement to file a partition action.
In estate law, this usually happens when multiple owners cannot agree on whether to sell a property or not. In these cases, co-owners can ask the courts to rule on how the property should be divided or sold.
Generally, partition actions are seen as a last resort.
How does a partition action work?
When you file a partition action, everyone who holds a legal claim to the property will be notified by the court. This includes all:
- Legal owners
- Lien holders
- Mortgage holders
- Banks and creditors
Partition actions can have significant financial consequences. For this reason, mediation is often the chosen course of action.
Mediation involves a disinterested third party who works alongside the co-owners to help them reach an agreement.
If an agreement is still not reached after mediation, the courts will rule on what to do with the property.
Partition of Heirs’ Property
A law in Florida allows certain heirs to save a property from a sale by forcing a “buy-out” from the other parties involved.
This law exists to protect any family property that may hold sentimental value or otherwise allow for an owner to keep the property while still compensating the others for their share.
Estate Planning in Florida
Patriot Legal Group represents estate planning and family law cases all across Central Florida. Consult with us today if you are thinking about filing a partition action or any probate-related matter.