Florida Home in Probate

Probating a house in Florida can be confusing. There are legal issues a lawyer considers prior to probating a house. For example, was the house the deceased’s primary residence, also known as homestead property? Was the deceased a Florida resident owning a second house in Florida? Or was the house owned by a non-Florida resident?

Defining Homestead Property

Homestead property is our primary residence during life and our primary residence at time of death. Homestead properties in Florida have rights and protections, which Florida law does not extend to non-homestead properties.

Real Estate Tax Exemption

Most homeowners in Florida are familiar with this tax exemption. It works like this. When determining the total real estate tax owed on a home, every property provides a tax assessed value upon which it calculates the real taxes. However, Florida law provides for an up to $50,000.00 reduction, or exemption of that assessed value of our homestead, reducing the taxes owed. For example, if a homestead property has a tax assessed value of $100,000.00, the county tax assessor reduces that assessed value by up to $50,000.00, Thus, the real estate taxes owed are based not on the $100,000.00 value but rather the $50,000.00 value, reducing the taxes owed. Florida law also provides other tax exemptions, which can further reduce the assessed value, further reducing the taxes owed. However, all these real estate tax exemptions die at the date of death of the owner.

Creditor Exemption

Florida law treats “our home as our castle.” As this relates to creditors, no creditor can force us to sell our homestead property to satisfy their debt. This creditor exemption applies only to our homestead. However, unlike the real estate tax exemption, which dies with the deceased homeowner, the creditor exemption survives the death of the homeowner. For example, if Mr. Jones dies owing credit card bills of $10,000.00, in most cases, the credit card company cannot force the sale of Mr. Jones’ homestead property at his death to get their outstanding bill paid. The beneficiaries of Mr. Jones’ estate, who are related to Mr. Jones by blood, get the homestead property free from the credit card debt.

Protection for Surviving Spouse and Minor Child

Florida Statute 732.4015 (1) and the Florida Constitution prohibits any provision deceased’s last will and testament which attempts to devise (give) their homestead property to someone other than their surviving spouse and/or minor children. Florida law entitles the surviving spouse and/or minor children to the homestead property, regardless of any provision in a last will and testament or trust, to the contrary. For instance, if, at the time at death, Mr. Jones was married and/or had minor children, but his last will and testament provides that the homestead property is to go to anyone other than them, that provision in the last and testament is void. The surviving spouse and/or minor children are both entitled to the homestead property. This also applies had Mr. Jones died with a last will and testament.

Non-Homestead Property

Non-homestead property is simply any real estate, which is not the primary residence of the deceased. This non-homestead property does not have the same rights and protection as does homestead property. For example, during probate, the estate may need to sell that non-homestead property to satisfy a creditor’s claim. Further, non-homestead property does not provide protection for surviving spouses and/or minor children from the devising of that property to anyone other than them.

As you can see, probating a house has its “twists and turns.” An experienced lawyer can navigate you through this maze. We have probated hundreds of houses and welcome the opportunity to answer all your questions.