Homestead Protection in Florida
Most people find the ins and outs of probate to be complicated. While this can certainly be the case, a lot of the stress and anxiety can be alleviated through testators learning what tools are available to them in creating their estate plan.
One of the primary causes of stress for many family members going through probate proceedings is the unknown surrounding creditor claims. Estate beneficiaries and loved ones will likely not be aware of every single creditor who might file a claim for repayment against a probate estate. Fortunately, there are rules which give a limit and general idea for the amount of time that a creditor claim might be filed. Even so, it can be unduly stressful to feel in the dark about the financial health of the estate.
Will there be enough money to pay the bills? Should I move into my old family home, or will it have to be sold in order to pay off a creditor claim?
Fortunately, in Florida, there are certain protections afforded to “homestead” real property. Read on to see how these protections might benefit you and your family’s estate when it goes through probate.
Homestead Creditor Exemption
In Florida, “homestead” real property can be protected against creditor claims. Florida’s constitution provides that a person’s homestead is exempted from forced sale during its owner’s lifetime. The property is further protected against such sale, under certain conditions, if it is being held by the homestead owner’s surviving spouse or the property owner’s heirs.
What is a “Homestead”
To qualify as a homestead, the title holder of the property must live on the real property. This property must be the title holder’s primary and permanent residence. This means that a person might hold multiple properties and live in various homes. However, only one property can be claimed as a person’s “homestead” and benefit from the homestead protections.
If the probate court determines that a property should be considered a homestead, then unless one of a few exceptions applies, then that property will not be subject to a forced sale as a result of creditor claims.
Homestead Exceptions
There are a few exceptions to the homestead protections that you should be wary of. Creditors can still force a sale of a homestead property if the claims relate to:
- Tax or assessments specified under Article X, §4(a) of the Florida Constitution,
- encumbrances that were voluntarily entered into,
- liens that became attached before the “homestead” was created, and
- liens created as a result of work performed to the property.
If the heirs of a homestead do make the decision to liquidate a homestead property, Florida courts have typically held that creditors cannot collect on their debts from those funds unless some unique or extraordinary circumstances exist.
Contact Suncoast Civil Law
The probate process is complicated. Losing a loved one is one of the most stressful things a family can go through. The last thing anyone needs in the midst of that stress is the added uncertainty of being unsure of important financial aspects of a testator’s estate. If you are unsure of how Florida’s homestead protections might apply in your case, contact one of the dedicated Sarasota wills & probate lawyers at Suncoast Civil Law
Sources:
leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/Sections/0732.401.html
floridabar.org/public/consumer/pamphlet026/