When a Florida resident dies, the decedent’s homestead is often the most valuable asset inherited by the surviving family members. Does a Florida homestead property have to go through probate? Read on to find out.
Florida Homestead Property – The Fundamentals
Article X, Section 4 (a) of the Florida Constitution provides that a homestead “shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for:
- The payment of taxes and assessments thereon,
- Obligations contracted for the purchase, improvement, or repair thereof, or
- Obligations contracted for house, field or other labor performed on the realty (…)”
If the owner of the homestead is married or has children, Florida law specifies that the same exemption “shall inure to the surviving spouse or heirs of the owner.”
Section 4 (c) provides that “the homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child.”
The same section also has provisions restricting the transfer of ownership of the homestead. Accordingly, “the owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse.”
Does a Florida Homestead Property Have to Go Through Probate? – An Overview
If a deceased Florida resident owns assets titled solely in his or her name at death, the beneficiaries (or heirs) must file for probate to transfer the title of the property. During probate, a court will designate a personal representative to administer the estate.
The personal representative must notify all parties with an interest in the estate, including the decedent’s creditors. The creditors have a statutory timeframe (statute of limitations) to lay claims against the decedent’s estate to collect from the assets subject to probate.
As long as decedent’s debts are not classified as the exceptions to the Homestead exemption, creditors cannot attach a lien or judgment against the property. If the property is not subject to creditors, it is not considered part of the probate estate.
In most cases, a homestead is often part of probate in Florida due to the personal representative’s need to obtain a court order affirming that the decedent’s property qualifies for the exemption.
For example, the beneficiaries of a decedent’s homestead interested in selling the property must request an Order Determining Homestead Status from the appropriate probate court.
It is possible to transfer a homestead outside of probate court and ensure one’s beneficiaries can inherit the property faster. With a revocable living trust, the homestead owner can devise the property using the provisions in the trust instrument.
The homestead owner becomes the trustor who transfers the ownership of assets to a trustee. The trustee has a fiduciary duty to the trustor, which is holding ownership of the assets held in the trust on behalf of the trustor’s beneficiaries.
With the help of an estate planning attorney, the owner of the homestead can transfer the property upon death without going through probate court.
Florida Homestead Exemption vs. Probate Administration – Immediately Contact Jurado & Associates, P.A.
A well-versed attorney from Jurado & Associates, P.A. is willing to help protect your legacy in Florida. Call us today at (305) 921-0976 or email [email protected] to find a strategy tailored to your case.