Dealing with Florida Homestead Property in the Probate Process
How does a Personal Representative distribute a protected homestead to a decedent’s heirs?
In this post we’re going to dive into the Florida homestead property and how that effects the probate process. Following a death, it is the responsibility of a personal representative to properly divide up a decedent’s assets. Various assets are treated differently in estate proceedings. A homestead is defined as a person’s primary place residence and comprises the land, house and any outbuildings of the residence.
The amount of acreage protected by the Florida homestead exemption depends on whether the homestead is located within a municipality. If the residence is within a municipality, one and a half acres are protected by the Florida homestead exemption; if the residence is located outside a municipality, up to 160 acres are protected.
Rights of the Spouse in Regards to a Florida Homestead
According to the Florida Constitution, the homestead “shall not be subject to devise if the owner is survived by a spouse and minor child. If not survived by a minor child, yet survived by a spouse, the property may be devised, although in many cases the spouse will have the right to life estate in the property before it can be devised. If the decedent is survived by neither a spouse nor a minor child, then they are free to devise the property at their own discretion.”
Responsibility of the Personal Representative
If the homestead is unoccupied at the time of death, then it is the responsibility of the personal representative to protect and preserve the homestead for the decedent’s heirs. In accordance with Florida Statute §733.608(2), if the property owned by the decedent appears to be a protected homestead and it is not occupied by a person who has an interest in the property, then the personal representative is permitted to take possession of the property to ensure that it is preserved, insured and protected for those who have an interest in the property.
Designation By the Court
Prior to distributing the homestead to a decedent’s heirs, a personal representative must petition the court to have the property designated as homestead property by demonstrating the property fits within the legal definition of homestead and was the decedent’s primary residence. Once this designation is made by the court, the personal representative can convey the property to the decedent’s heirs and be relieved of any further responsibility for maintaining the homestead.
It is important to consider how homestead is devised during the estate planning process so that it maintains its protected status through the probate process. If you have any questions about a homestead of a decedent or how to properly plan to devise your homestead, call Bedy Law for a FREE consultation at (727) 308-0529.
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