A Florida homestead property (i.e., your primary residence) is considered a non-probate asset because the Florida constitution controls how homestead property is distributed. However, in order to convey clear title to a buyer or to refinance the property, Florida homestead must go through the probate process if the sole owner on title is now deceased.
Inheritance of homestead property is handled differently than other real estate because of the rules relating to how homestead can be devised. How does a homestead property get passed to beneficiaries? It depends on a few factors, such as whether there is a surviving spouse or minor children. Your homestead property cannot be freely willed to anyone if you have a spouse or minor child.
Probate, estate, and property laws in Florida are complex and require an in-depth understanding of how each set of regulations interacts with the others. A Florida probate attorney is your best resource for personalized information.
Homestead Property and Florida Probate
Homestead property is a Florida house or property used as a primary residence. Because a homestead in Florida is exempt from claims of most creditors and automatically inures to a deceased’s heirs when they pass as per the Florida constitution, it is generally not considered part of a probate estate. However, if the person on title is the sole owner of the property and they pass away, a probate may be required in order to clear title to be able to sell or refinance the property. Furthermore, the Florida Constitution states that your homestead property cannot be freely left to anyone in a Last Will & Testament if you have a spouse or minor child.
So, what happens to homestead property when the owner passes away? If the deceased did not leave a Last Will & Testament (i.e., died “intestate”), the title to a homestead will still pass to the deceased’s heirs at law, but it may first be subject to a life estate claim by the spouse. Surviving spouses of deceased owners may become what is called a life tenant of a homestead property, which means they have the right to live in the property for the rest of their lives even though they might not have 100% ownership rights in the property. If certain rules are followed, a spouse may also elect to get a one-half interest in homestead property instead of a life estate. This election must be made within 6 months of the decedent’s death.
Even though homestead property is considered a “non-probate” asset, it may still be necessary for the executor or personal representative of the estate to request that the court classify the property as the deceased person’s homestead. Also, if the sole owner of the property is deceased, in order to convey clear title to a buyer or to refinance the property, Florida homestead must go through the probate process. If you have questions about which property is required to pass through probate in Florida, contact a probate attorney to discuss the estate’s assets and debts.
Homestead and Long-Term Care
In order for the homestead status to be maintained, the property must be the owner’s primary residence when they pass away. If an owner cannot stay in their homestead due to medical issues or illness, for example during a long-term stay in a nursing home, will they forfeit their homestead protection? In most cases, long-term care requirements will not cause a homeowner’s property to lose its homestead status.
Inheriting or Selling a Homestead?
Some people use a living trust to hold their property, including their homestead residence. Living trusts offer the possibility for both real and personal property to be held by a trustee in order to avoid probate. A Lady Bird Deed (also known as an Enhanced Life Estate Deed) also avoids probate while allowing you to have full control of the property while you are still living.
Selling a homestead presents unique challenges. Title companies are hesitant to provide insurance for a homestead title if they cannot verify the property is a homestead exempt from creditor claims. A court order is also needed to identify who the rightful heirs are who are entitled to the homestead.
Public records in Florida do not indicate whether a property was a primary residence or homestead, so the title company may have difficulty accessing that information. A court order designating the property as a homestead would satisfy this requirement for the title company, but it does also require court involvement and probate proceedings.
An Experienced Florida Probate and Real Estate Lawyer
These are only a few of the considerations that personal representatives, heirs, and surviving spouses must consider when handling a homestead property in Florida. For a free consultation and to learn more about our probate and real estate services, call us at (800) 604-1871, or email us via our secure online contact form. We can assist with retitling your assets in a manner that avoids probate and the Florida intestacy laws. We provide real estate, probate, and closing/title services throughout the State of Florida.