I filed a petition for probate in pasco county florida. It was denied. The court sent back a form stating that the court will not allow the only assest in a Summary Administration to be a homestead property. Homestead is not to be included on the order of summary administration. What does this mean? What do I need to do?
Estate Planning Attorney
You will need to file a Petition to Determine Homestead Property, because the regular probate proceedings cannot transfer homestead property. The Judge will grant the Homestead Petition so long as it is going to her children. This is all due to some peculiarities with Florida's homestead laws. It may well be worth your time and money to consult with a probate attorney.
Typically in a case whee there are no other assets are in the probate estate and a family member wants to legally get the name of the home into their name as the next in line lineal descendant beneficiary of the decedent a petition for summary administration along with an accompanying by petition for homestead determination is filed. is reason is that a petition to determine Homestead cannot be filed on its own. in addition, in order for a court to enter an order determining Homestead, there is a creditors. In which creditors can file claims or objections to a petition related to Homestead. in the past I have filed affidavits of the beneficiaries recognizing that claims of any creditors can come forward within two years of entry of any order related to summary administration or even the entry of an order determining Homestead, but even I am hesitant to do that in court reluctant to wanting to enter an order determining Homestead until the creditors period has run. By that I mean, one can publish a quote notice to creditors of summary administration and a petition to determine Homestead" in the local newspaper. This notice requires creditors to file the claim within 90 days of publication or their claim will be barred. Typically courts will only enter an order determining Homestead after that 90 day period has expired. I know this is a lot to digest, to wit I concur with my colleagues who indicated consultation with the probate attorney will probably save you time and aggravation.
I know you want to try to save money to do it yourself, but if that doesn't work, I suggest you hire Attorney Pippen. He's a good attorney.
The contents of this answer should be considered friendly advice, not legal advice and the answer should not be construed to constitute an attorney-client relationship. If you'd like actual legal advice, call me at 954-567-4100. Also, if you liked this answer did, be sure to click the thumbs-up button
The answer to your question is tricky. If the home was where your mother intended to permanently reside, then it was her constitutional homestead, and is not subject to probate administration if passing to you, as a family member. It cannot, therefore, be included in the order because the probate court does not have jurisdiction over non-probate assets. That is the "why" answer to your question. The "how" questions are another matter. The other attorneys responding were correct. You will, in all probability, be required to retain an attorney for this matter. SkipperandSkipper.com
Estate Planning Attorney
The short answer is that you need to hire an attorney who is experienced in probate in Pasco County and who is familiar with what needs to be filed with the probate court. Probate is far more involved than just filling out forms. It is always a good idea to seek out an attorney that practices in the area of law you require and in the county where the case is to be filed.
As with the other answers, you should consult a local probate attorney. Judge Schafer in Pasco is very particular and has a very detailed rules for his court. You can find those rules on the 6th circuit web page for Pasco. This may change because Judge Schafer is rotating out of Pasco to Pinellas on January 1. You have to file a petition to determine homestead and so long as the property satisfies the requirements under Florida law and constitution you should be fine. However, you should also note that Fl. Probate rules do not allow a person to file a petition wihout an attorney unless you are the sole interested person.