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In Florida,doesn't a Homestead pass to the heir(s) outside of probate by law so you don't need to list it as part of the estate?

Pensacola, FL |

I just inherited a home from my mom (dad already passed). I believe I qualify for Summary Administration and I thought title vested in me as soon as she died so I wasn't going to list it as an asset of the estate.

Attorney Answers 3

Posted

YES/NO. While the home passes outside of probate, its necessary to determine the home to be homestead within a probate. This can be done in a summary administration. If this is not done, you could have problems selling or transferring the property in the future because of title insurance.

David Goldman
Apple Law Firm PLLC
3733 University Blvd West, Suite 212B
Jacksonville, FL 32217

Tel (904) 685-1200 NEW Fax (904) 875-4081

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Posted

You have an issue that is subject to different opinions among Florida judges and attorneys. The Florida Statutes do provide that Summary Administration is available if the non-exempt assets don't exceed $75,000 or if the decedent died more than 2 years ago. You are correct that title vests in the heirs at the moment of death, but there are issues that must be addressed by a court order. With homestead property, there are three important factual determinations.

The first is whether or not the property actually was the decedent's homestead as defined in Article X, section 4, of the Florida Constitution. A different section of the constituion provides for the homestead tax exemption, so the tax exemption is not determinative. There are also rules limiting the size of the homestead.

Next, it must be determined whether the decedent could devise the homestead by will or trust. If the decedent was survived by a minor child, the homestead can't be devised. If there was not a minor child, but there was a spouse,the devise can only be to the spouse. If there was no spouse or minor child, then the home can be devised to anyone. If the decedent did not have a will, the court must determined who was entitled to the home as the heirs of the decedent.

Finally, the court must determine whether the home was "protected" or exempt homestead. The first two questions must be addressed, and then the court must determine whether the persons recieving the homestead was either realted by blood or marriage. If they were, then the homestead was exempt and protected from the claims of the decedent's creditors.

Protected homestead does not count toward the $75,000. However, the Summary Administration Order does not make the determinations outlined above. Instead, a Petition to Determine Homestead Status must be filed and served on persons affected by the determination. Because creditors are affected, some judges won't make a homestead determination in a summary administration proceeding. In those cases, formal administration must be used. Other judges won't make the determination without notice to all creditors, which requires the publicaion of the Notice to Creditors, follwed by the 3 month claims period.

Homestead is one of the most complex areas of Florida law. You cannot handle it correctly without a licensed, Florida attorney.

My comments are not intended to establish an attorney-client relationship, are not confidential, and are not intended to constitute legal advice. Proper legal advice can only be given by an attorney who agrees to represent you, who reviews the facts of your specific case, who does not have a conflict of interest preventing the representation, and who is licensed as an attorney in the state where the law applies.

The problem is a very technical one and one that leads to different opinions. It involves when probate court has jurisdiction to determine the homestead status of real property and whether

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Posted

I concur with both of the previous answers. Our office goes through the formal probate choice so the appoined personal representative can sell the home in the estate and still have the protection of determining that it was homestead.

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