Recently a Georgia probate lawyer contacted me about an estate he was helping settle, that of a Georgia resident who had been a widow when she died, Selma Johnson. The lawyer represented her son, who was the personal representative of the widow’s estate. When the widow and her husband, Jim, were first married, they lived near Gainesville, Georgia. But soon afterwards they moved to Miami, where Jim worked for many years for one of the airlines. During their time in Miami, Jim inherited a mountain lot north of Gainesville, and the couple built a summer home on it. Jim had a Florida real estate lawyer prepare a deed that conveyed the Georgia summer home from Jim himself to Jim and his wife, “as husband and wife.” (The deed recited that the new owners were “Jim Johnson and Selma Johnson, his wife.”) The next time the couple went up to their summer home, they took the deed with them to the nearby county court house and had it recorded.
Jim died not long after he retired from the airlines. A few years later Selma moved back to Georgia, making their summer home her primary residence. The home was still titled “Jim Johnson and Selma Johnson, his wife.”
Now Selma has died, and her Georgia probate lawyer was on the phone because the deed, prepared by the Florida lawyer many years before, did not work “by operation of law” to transfer full title to Selma at the husband’s death. It would have done so had it been a Florida land parcel, but “Jim Smith and Selma Smith, his wife” without more did not transfer Jim’s ownership at his death by operation of law to Selma under Georgia law. So the Georgia lawyer was confronted with two probate problems, one was the problem with Selma’s half of the real estate – that was expected. But the other problem was Jim’s half of the property, and the question was, “How could it be demonstrated for land title purposes that Jim meant for her to have complete ownership of the mountain residence if he were to die before she did?”
Selma’s son remembered that his dad had a “simple Last Will” when he died and that it left everything to his mother. The Georgia lawyer had called the probate division of the clerk’s office in Miami-Dade, the county in which Jim and Selma lived when he died, to find out whether the Last Will had been “probated.” But Selma and Jim owned everything concurrently and in a way that, upon the first death, complete ownership of their assets moved to the surviving spouse. At least they thought that this was the case. So Selma had not instituted Florida probate proceedings in which a Florida judge might have issued an order “admitting” Jim’s Last Will. If she had done so, then the Florida order could have been recorded in the Georgia county where they owned their mountain home. That would have shown that Selma owned 100% of their mountain home when she died.
What, then, was to be done?
Under Florida law, if one is holding an original Last Will of a Florida decedent, he or she, as that document’s custodian, is to “deposit” it “within ten days after receiving information that the testator is dead” with the clerk of court of the county in which the decedent lived at the time of his death. To deposit the Will does not mean to institute probate proceedings, however. The purpose of the law, mainly, is the safekeeping of the Last Will, in case someone should ever want to institute probate proceedings. A Last Will on “deposit” really says nothing about issues that are settled in probate proceedings. For example, is the Last Will on deposit really the “last” Last Will that the decedent signed or did the decedent sign another one later? Was the decedent in his right mind when he signed it? Was it properly witnessed? Did the wife identified in the Last Will die before the decedent died? Did he remarry before he died? Did he have more children after he signed the Last Will? These and other questions are addressed in due course in probate proceedings, where the Last Will is “proved” and held to be valid by a Florida Circuit Judge. All a deposited Last Will shows is that, at one time prior to the date of the deposit, someone signed the name of the person, purportedly the decedent, whose Last Will the document appears to be.
As it turned out, someone had deposited Jim’s Last Will with the Miami-Dade County clerk of court shortly after Jim’s death and decades before Selma’s. My office arranged to obtain a copy of that document, a copy that the clerk “authenticated.” We sent that copy to the Georgia lawyer. He was able to use that authenticated copy in his Georgia proceedings without further involvement of the Florida courts. It must have somehow served under Georgia law to establish that Jim had left everything to Selma and that, therefore, the mountain residence was completely in her estate when she died.
(Florida has a streamlined procedure under Rule 5.210 of the Florida Probate Rules for obtaining a Circuit Judge’s order establishing that a given Last Will of the decedent is, for all legal purposes, the Last Will, where such an order alone (and without more) is all that circumstances require. It was my view that the Georgia lawyer would probably need such an order, but it appears that the “authenticated” copy from the clerk was all that he needed to fix the problem there.)
There are several things to learn from this story: Do not have a Florida real estate lawyer do the real estate work for a parcel located in another state. A corollary to the rule is this: Do not arrange to record a deed yourself, without having a lawyer in the jurisdiction in which the deed will be recorded look at it carefully. Finally, when someone passes away it is good to have a lawyer review everything, even where it may appear that everything “by operation of law,” beneficiary arrangement, or some other extra-probate feature will get the decedent’s assets where they are to go.