Can a Personal Representative Sell Homestead Property in Florida?
In most cases, a personal representative is not authorized to sell homestead property. Homestead property passes outside the probate estate whether devised or not.
Personal representatives have no jurisdiction over the title to the homestead. Thus, a personal representative cannot just decide to sell homestead property. Even if the personal representative determines that homestead would be better for the beneficiaries if the homestead property was sold.
Does Homestead Property Have to be Probated in Florida?
As with most assets, Florida Homestead properties must be probated, which is the process of overseeing the closure of an estate (for example, paying creditors, distributing assets to beneficiaries, etc.). However, probate laws in Florida Homestead properties are impacted differently than other types of assets.
When a homestead owner dies, and the property is transferred to their direct heirs, the property does not break or cancel the existing homestead protections. Florida has two primary forms of probate to qualify for summary administration. The first is the value of the entire estate must be less than $75,000 and the second one being the descendant must have been dead for more than 2 years.
What is Considered Homestead Property in Florida?
Real property is considered a homestead if it is owned by an individual (not a corporation or trust); if the individual is a Florida resident; if the property is the primary residence; and if the property is at least half an acre in a municipality or 160 acres outside of a municipality.
Additionally, it is not always necessary for the owner to be living on the property when he or she dies for the property to be considered a homestead. Florida homeowners commonly think of homesteads as a tax break provided by the state. But there are also creditor exemptions to protect from a forced sale of the property.
How Does Homestead Property Pass in Florida?
Florida homestead property always passes to a surviving spouse and minor children, regardless of what the will says. The Florida homestead can be left to anyone if there are no minor children and no surviving spouse. If there is a surviving spouse how much they inherit will depend on adult children and if they are living.
If there are no descendants of the owner, then the spouse takes the entire homestead. In the absence of a surviving spouse and minor children, a Florida homestead passes as any other asset. In a will with no other descendants the owner can decide where the property goes and to whom.
What is an Order Determining Homestead?
A court’s order determining homestead status of real property no longer makes the property a concern of the probate court and protects it from unsecured creditors. In most circumstances, the Order Determining Homestead cannot be obtained until after the three month creditor claim period has expired, and it confirms the property was the decedent’s Homestead as defined by probate law.
According to Florida law, as a special kind of asset, it passes automatically to the heirs; however, the heirs may not have clear title. Their home cannot be sold without a clear title. As a result, title companies must issue a title policy based on an Order Determining Homestead.
What Does Petition to Determine Homestead Mean?
In order for your heirs to prove homestead criteria have been met, a Determination of Homestead proceeding is required. This is most commonly brought to court in the probate division. There are three important reasons why you would want to have your Florida Homestead validated.
- Protection from Creditors: Homestead property is exempt from creditor claims upon the death of the decedent, and this protection passes to the deceased’s heirs at law. This means that creditors of the decedent cannot force the property to be sold or collect outstanding debts against the homestead.
- Protect the interests of Spouse or Minor Child: Another reason to declare a property a homestead is to protect a spouse or a minor child. Florida homestead property is not divisible when the decedent is survived by a spouse or a minor child.
- Clear Title: Upon sale of the homestead property, we have found that title underwriters will not provide title insurance without a Determination of Homestead. While the process varies between underwriters, it is a common practice.