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Homesteads: The Good, the Bad, and the Ugly

Thursday, June 6th, 2013 by

 

          We recently had to address a question regarding what happens to someone’s homestead in probate when it does not qualify for exemption.  When an estate goes through probate, there are special rules governing what happens to homestead property.  The good thing about this is that under certain circumstances, the homestead is completely protected from creditors and doesn’t even go through the probate proceedings, allowing those who inherit the homestead to continue using it through a homestead exemption.

Unfortunately, the laws creating the homestead exemption are extremely complex.  There are rules about who a homestead can be given to if the decedent is survived by a spouse and it cannot be devised at all if the decedent is survived by minor children.  Even if the homestead can be devised because there is no surviving spouse or minor children, there may be a question of whether the homestead qualifies for the exemption, as the Florida Constitution only protects the homestead if it is devised to certain heirs.  Otherwise, the homestead becomes subject to probate and creditor claims like any other asset.

While Florida’s constitutional protection of “homestead” is very strong, when dealing with a homestead issue, it is useful to consult an attorney to help navigate the complexities of the law.  We often say that a better option is to avoid probate altogether by creating a trust to govern your estate when you pass away.  However, there can be special problems with putting homestead property in a trust, eliminating that normally useful bypass.  This makes it even more imperative to consult an attorney when attempting to deal with homestead issues to ensure that your wishes for your home will be followed.  If you have any questions about homestead exemption law or would like to speak about creating an estate plan, please feel free to contact us.

 

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Categories : Estate Planning

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