Florida Probate and Homestead

When it comes to Florida Probate and Homestead, there are several questions you may have:

  • Do you have a loved one who passed away owning a house?
  • Are you wondering what your rights are regarding this property?
  • The first question that needs to be answered is, “how did this person hold title to the house?”
  • The second question that needs to be answered, if they owned the house solely in their name is, “was this property their homestead”?

As I have discussed in other blog posts concerning probate, if a person dies owning an asset solely in their name that is when a probate must be started.  However, if they own the asset jointly with someone, most likely, a probate is not needed.  The easiest situation is where a husband and wife own the homestead together.

On the death of the first spouse, the house automatically belongs to the surviving spouse and there is no probate needed.   In order to determine how the couple held title in the house, you must look at the deed to the property.

For most married couples, the deed will show the names of the couple, as husband and wife (i.e., “John Smith and Mary Smith, as husband and wife” or “John Smith and Mary Smith, his wife”).  This is known as owning the property as “tenancy by the entireties” which is only something a husband and wife can have.  If the deed is worded like this, then you know that the house will not have to go through probate on the death of the first spouse.  Also, if the deed to the house is worded in the names of two or more parties with the words, “as joint tenants with rights of survivorship”, then the house does not have to go through probate.  The remaining survivors would own the house in equal shares.

What happens if the house was titled only in the decedent’s name?

Then we know that the house will have to go through the probate process before title to the house can be transferred to the decedent’s beneficiaries (if he/she has a Will) or to the decedent’s heirs at law (if he/she died without a Will).  It is also important to determine whether the house was the decedent’s homestead on their date of death.  You can look at the local property appraiser’s website to determine if this was indeed the decedent’s homestead.  If it was not the homestead, then the property is subject to the claims of creditors.  In other words, if the decedent had a lot of credit card debt and/or medical bills at death, the property may need to be sold so that these creditors’ claims can be paid.

[pullquote_right]In Florida, we have a Constitutional provision that states that the homestead is exempt from creditor claims (but you still have to pay the mortgage and taxes, etc.), and that creditor exemption also passes to the surviving spouse and heirs of the decedent. [/pullquote_right]If the property was the homestead of the decedent, then we need to look at whether or not the decedent had a Will.  If the decedent does not have a Will, the property will be left to family members in accordance with Florida Statutes (first a spouse, then children of the decedent, then parents of the decedent, and so on).  The house would pass to those family members free of any creditor claims.

If the decedent had a Will, so long as the persons the decedent left his/her property to include the surviving spouse or heirs of the decedent, then the exemption from creditors passes to them, as well.  If the decedent’s Will, however, leaves the homestead to someone who is not a surviving spouse or blood relative, then there is no creditor protection and the property could be sold to pay off any creditor’s claims.

Laurie Ohall is a board certified elder law attorney practicing in Brandon, Florida.  Contact Ms. Ohall today if you are in need of estate planningelder law, probate or guardianship assistance.

By | 2014-04-02T12:33:11+00:00 April 2nd, 2014|Categories: Estate Planning, Florida Laws, Probate|0 Comments