Posts

PROBATE-YOUR HOME GETS SPECIAL TREATMENT

Homesteaded property enjoys a complicated and confusing status under Florida probate law.  It isn’t a probate asset, but to get its special non-estate status, it has to be certified as such by a probate judge.  In other words, the only way to keep it out of probate is to take it there first, unless the owner takes the necessary action while alive to avoid probate.

house

Once someone decides to make an asset their homestead, the homestead laws can supersede what someone puts in his will. For instance if a person wants to leave his homestead to his girlfriend, that bequest won’t work if he’s still married at the time of his death. If a decedent is married, his spouse will have rights to the property until she dies, even if she is excluded from the will. She will have the right to choose between a life estate in the property and, in some cases, a 50 percent interest in the property even if she isn’t on the property’s title.  Furthermore, the decedent’s descendants also get rights to the homesteaded property.

 An example of how this probate/non-probate status of homestead property works is as follows:

 Ted Testator has a homestead condominium that he leaves to his 3 adult sons, Danny, Martin, and Joe in his will.  Ted dies and then Joe moves into the condo.  He doesn’t give his brothers access and won’t pay any of the carrying charges.  Even though a probate estate has been opened, the Probate Court won’t have the authority to hear this case.  A separate action must be brought in the Circuit Court, if the brothers want Joe out or want to sell the property.

 While the Probate Court cannot decide Joe’s fate, the Probate Judge can declare a property “homestead.”

While homesteaded properties are still subject to liens directly placed against them, like taxes and mortgages, they enjoy protection from other creditors.  As such, a homestead usually cannot be sold to meet other obligations of the estate. This protection can shelter the home’s equity for the heirs of the decedent, whoever they might be.

Ultimately, Florida’s laws dealing with homesteads and with transferring the property of deceased parties are extremely complicated and nuanced.  Given that most people do not have to deal with them on a regular basis, the help of an experienced estate attorney can be valuable.  An experienced attorney can manage these complexities and ensure that the family’s rights are protected throughout the process.