A Florida homestead property must undergo probate when there is only one individual on title or when there are a few individuals who hold title as tenants in common and one of those individuals passes away. Probate is a process whereby a court supervises the winding down of an estate (such as the payment of any creditor claims, the proper distribution of assets to beneficiaries, and so on). However, Florida probate rules impact homestead properties differently than other types of assets. When planning your estate, it is crucial to understand these implications and consult with a specialist in probate and estate planning who can help you prepare.
Understanding the Florida Homestead Exemption
To understand how probate affects a Florida homestead property, it helps to become familiar with Florida’s homestead rules, which are among the most robust in the nation. Under Article 10, Section 4 of the Florida Constitution, real property qualifies as a homestead if it is owned by a natural person (as opposed to another legal entity like a business or trust); the natural person is a Florida resident; the property is the primary residence; and if the property in question is at least half an acre in a municipality or 160 acres outside a municipality.
Aside from significant savings on property taxes, one of the major benefits of Florida’s homestead exemption is that it protects the homestead property from being forcibly sold to satisfy a debt to creditors (among the few exceptions to this protection are the payment of taxes or assessments on the property, obligations arising from the purchase of the property (such as a mortgage lien or association debt), and contractor liens from the improvement of the property).
How Probate Affects a Florida Homestead Property
Under Florida homestead rules, the homestead exemption and all its benefits pass to the heirs or surviving spouse of the owner after the owner dies. In other words, under certain conditions, the death of the homestead owner and subsequent transfer of the property to their direct heirs does not break or cancel the existing homestead protections.
So, if the homestead property was not subject to liens or mortgages, it will automatically pass to the heirs or surviving spouse without being subject to the claims of creditors. Moreover, if the recipient of the property plans to also use it as their primary residence, even the recipient’s creditors will be barred from forcing sale of the property to satisfy a claim (subject to the previously mentioned exceptions).
Clearing Title to the Florida Homestead Property with Summary Administration
Florida has two primary forms of probate. The first and most common is formal administration, which is best understood as “standard probate,” involving the appointment of a personal representative of the estate and all the usual paperwork and procedures involved in the probate process. The other is summary administration, which, as the name suggests, is a shorter form of probate – this type of probate does not require the appointment of a personal representative.
To qualify for summary administration, the estate must meet one of two criteria:
- The value of the entire estate—not including the value of any homestead property—must be less than $75.000; or
- The decedent has been dead for more than two years.
Thus, regardless of how high the value of the homestead property may be, if it is the only asset in the estate, or the remaining assets total less than $75,000, the Florida homestead will qualify for summary administration and will pass more quickly to the direct heirs or surviving spouse (usually within the span of a few months).
However, just because Florida law mandates that a homestead property passes directly to a decedent’s heirs, that does not mean that they will have title (i.e., legal ownership) to that property without probate. That is why it is crucial to file a “Petition Determining Homestead” with the probate court, alongside a “Petition for Summary Administration,” so that any title matters can be resolved more quickly.
Consult with a Probate Attorney from Farshchian Law, P.A.
Our probate attorneys have helped estates of all sizes and levels of complexity navigate the complex probate process, including those that have a homestead property. We will carefully analyze your estate to determine whether it is eligible for summary administration, and file all the necessary paperwork in a timely manner.
If any title issues should arise, our expertise in title and real estate matters will help you to resolve the matter more quickly. If you would like to learn more or are interested in a free consultation, please call us at (800) 604-1871 or email us at Probate@JFRealEstateLaw.com.