Florida probate/homestead question

Depending on how the money market fund is titled, it may or may not pass through probate. You say that there are BENEFICIARIES for the money market account. That suggests that it was an IRA or other such tax-favored account. If so, then yes, it passes outside of the probate estate by operation of law.

As for the home, you or the personal representative must confer with the probate attorney about how to maintain the home (utilities, mtg., etc.). Since I am not a probate practitioner, I can't advise you on that issue. It seems to me that, unless the home passed by operation of law, it would lose its homestead creditor protection because it is no longer the permanent residence of a Florida permanent resident. But I may be wrong. This much I know: mortgagees are super-creditors that can force the sale of one's primary residence; and many properties fall into foreclosure suits while in probate. You and the other heirs may be well advised to work out the details of who will take the property now so he/she can keep up the payments.


Dennis Phillips, Esq. Florida personal injury & wrongful death plaintiff’s attorney.
Million Dollar Advocates Forum, Mensa, Florida Bar, American Association for Justice, Florida Justice Association, Palm Beach County Justice Association, Broward County Justice Association. www.inawreck.com. Negligence is no "accident" (TM)

Probate is the process of collecting the decedent's assets that don't take care of themselves. For example, if the account has a beneficiary named, the bank will not need an order or "letters of administration" which come from probate proceedings. They'll just ask for a death certificate and perhaps some other paperwork. Life insurance policies and IRA's with beneficiary designations also do not require probate in most situations.

Florida homestead is a very complex subject. A signle fact can change the outcome for a particular issue. In probate, homestead is exempt from the claims of the decedent's creditors if it was the decedent's primary residence at the time of death and the home was left to one or more people who were related by blood or marriage to the decedent. The probate process includes a procedure to notify creditors, object to creditor claims that are not valid, and then obtain a court order confirming that the home is "protected homestead" exempt from creditor claims, meaning it passes directly to the beneficiaries named in the will. There are also procedures to protect the estate in the event that the personal representative has to use estate money to maintain the homestead during the probate proceedings.

The homestead protection does not supercede a valid mortgage. The mortgage is a lien on the property. The mortgage is security for a promissory note which also represents a debt of the decedent, so the bank could file a claim as a creditor in the estate. It is important that the estate beneficiaries determine early on how they will handle the mortgage. With declining property values, we've handled several estates where the mortgage balance was higher than the value of the property.

If the homestead property is the only asset passing through probate, the result may be similar to bankruptcy. If the creditor claims exceed the unprotected assets in the estate, the Florida statutes provide a list of creditor categories. Creditors in the first category are paid first. If there is more money in the estate, the next category of creditors are paid. When the money is gone, the remaining creditors don't get paid.

When it comes to probate, homestead, and creditor claims, there may not be an easy answer. A Florida attorney should be consulted to review the specifics of the case. My statements are only general statements and may not apply to your specific case.

I hope this helps.

The account will not be an asset subject to probate (assuming the beneficiary designations are valid and have survived your mother). The home is protected but a probate will be necessary to satisfy title insurance companies and one day allow for the sale of the property with title insurance. The probate will also establish that the home is homestead and as such protected from creditors of your mother.

You can find more on this in my Florida Probate Handbook (link below)