Florida Estate Planning Lawyer Blog

If your last parent in Florida has passed away leaving their Jacksonville home, how do you proceed if you want to sell the house? A Florida deed transfers title to real property from one person(s) to another. Generally before anyone will purchase a property, they will require clear title to the real property.

Whether your surviving parent died with a Florida Will or without a Will (intestate), if you want to sell the home, title to the property will need to be transferred to your parents to the named beneficiary or heir. A Florida probate proceeding is necessary to transfer title to the real property in such a way as to establish clear title. Florida statutes require that a Jacksonville Probate Lawyer or a Florida Probate Lawyer is used to represent the Personal Representative or Estate when there is more than one heir in an estate.

Florida's Constitution severely restricts a judgment creditor's ability to place a lien on, and force the sale of the homestead property. The purpose of homestead protection is to protect the family home from all but a few qualified creditors. To qualify as homestead property, the property must be owned by a real person, as opposed to a corporation, and must be the permanent residence of the owner

The St. Augustine homestead shall not be subject to devise (leaving your home to someone in your Will) if the owner is survived by spouse or minor child, except the homestead may be devised to the owner's spouse if there be no minor child.

How is the Florida Homestead protection interpreted if a Florida same-sex or non-traditional couple owns a home together, and there are minor children. Good question . . . and complicated question. Each couple has a unique set of circumstances surrounding their relationship and the relationship each person has with the minor child. Be prepared for protection by contacting a St. Augustine Homestead Attorney to discuss your unique situation.

Atlantic Beach, Neptune Beach and Jacksonville Beach homeowners may know that the Florida Homestead Protection mandated by the Florida Constitution, is afforded to many residents.

This homestead protection protects one's home from the claims of most creditors. Further, if one dies leaving minor children, then the home cannot be devised (giving property away in one's will) or sold.

As with everything in the law, the homestead protection is not black or white. There are many interpretations based on a case to case basis. In a recent Florida case, the court held that a house owned by a decedent and his mother as joint tenants with right of survivorship was not homestead property for purposes of the administration of decedent's estate.

Although the decedent had minor child when he bought the house with his mother, the deed to the property was titled between decedent and his mother as joint tenants with right of survivorship. The court held that upon decedent's death, his interest in the property terminated, and it became the sole property of his mother as the surviving joint tenant without any life estate for the benefit of his children.

Confused? Join the crowd. Homestead status and homestead protection is a complex legal doctrine, and it is best to discuss your individual circumstances with a Jacksonville Probate Attorney.

An Orange Park daughter loses her mother and only then realizes that the deed to the family home was in her father's name, alone. Her father had children from a previous marriage, her father died many years ago, and her father did not leave a Will. According to the Florida Intestate Succession law if one dies without a will, property passes in a specific manner. Once the mother passed away, the home would then pass to the father's children, all of them.

Whether you have a relationship with your half-siblings and whether you know where they are currently living, may make a difference in how easy or complicated your efforts to obtain ownership of the family home will be. If you need advice, or are wondering what you should expect in your efforts to obtain title to the home, speaking with experienced Orange Park probate attorneys will benefit you.

As a Jacksonville Attorney at a Florida Estate Planning Firm, I have seen many issues concerning homestead protection in both probate matters and in estate planning. When you occupy a home in Florida as your main residence, this is called your homestead property. Notwithstanding some exceptions, the Florida Constitution protects the homestead from forced sale by creditors. If the owner of a homestead dies, the creditor protection of the home (from the decedent's creditors) continues for the spouse or family members who inherit the homestead. If the home becomes the homestead of the spouse or other family members then they shall also enjoy the same creditor protection from their creditors.

A Florida condominium was transferred to a Florida revocable trust. Upon the death of the first, the Florida Revocable Trust created a marital trust for the spouse, with the remainder to sons from a previous marriage. A few months after the condo was titled to the trust, the same condo was deeded directly to the spouse. A lawsuit ensued as to who owned the condo, the trust or the 2nd wife.

The sons won an initial victory, ensuring they would receive the condo upon the surviving spouse's death. The surviving spouse counter-sued for reimbursement of all condo related expenses paid with her own funds, and won a money judgment against the sons. The spouse wanted the sons to transfer a percentage of the condo interest to her, and the sons wanted the trust to sell the condo to obtain money to pay the judgment against them. The sons lost.

A Florida District Court ruled that homestead property (the condominium) held in a marital trust does NOT lose its creditor protection. Homestead issues can be complicated and diverse, it is recommended that you consult with a Jacksonville Homestead Attorney to learn more about the homestead protection and how it effects you and your family.

The rights of a surviving spouse changed in late 2010. These new rights give the option of a 50% interest in the sale of a homestead or a life estate. In most cases where the home is owned by husband and wife as Tenants in common, the surviving spouse will have full ownership of the home.

Most Florida Estate Planning Lawyer deal with planning for the unexpected and protecting your assets for those after we are gone. Part of this protection and planning often involves the use of the Florida Homestead. The Homestead Exemption is not exclusive to Florida. A recent case, a New York Representative is accused of claiming a Homestead exemption for a home located in Washington, D.C.

The homestead exemption varies from location to location, but it generally applies to one's primary home. Recently government officials have noted that even though this exemption was established in the late 1800s, still only few today take advantage of it.

Tax officials in several locations around the country, including Florida, have begun to crackdown on the number fraudulent claims that are being reported every year. The New York Times reported that Jennifer Frastai, City manager of Hallandale Florida, has begun an intensive effort to stop fraudulent homestead claims.

In Florida there are two homesteads. This article is dealing with the property tax credit with is often confused from the homestead that protects your residence from attacks by most creditors. While many states offer homestead credits for taxes, few offer unlimited protection from creditors. If you would like someone to review your estate planning documents to see if you qualify for either type of Florida Homestead Exemption, contact your local Florida Estate Planning Lawyer today.

Florida homestead is a constitutional protection which makes the homestead of a decedent exempt from the claims of creditors. Florida Homestead can apply to condominiums, however, a Florida District Court recently affirmed a lower court decision which held that decedent's contractual interest in a condominium (which was owned by decedent at the time of her death) was not homestead property, and therefore, not protected from claims of creditors.

The decedent had purchased a life estate in a condominium from the condominium association and then entered into a repurchase agreement. The repurchase agreement provided that upon the death of decedent the life estate would automatically terminate and fee simple title would be vested in the condominium association, which would then attempt to sell the condominium for the benefit of decedent's heirs. Therefore, the condominium was not afforded homestead protection.

Considering the descendant did not have an interest at the time of death, I am not sure what this case was about. If her interest expired at death, there was nothing there to protect.

If you or a loved one owns a condominium in Ponte Vedra Florida make sure you know what type of agreements have been entered into between condominium owner and condominium association and consult with a Florida Attorney to learn more about the homestead law.

Starting October 1, 2010, if you die in Florida your spouse will be able to elect to take the traditional life estate in your homestead that is separate property or a 1/2 interest in the property. While this does not effect many Floridians, it does effect many who got married after purchasing their home or who have children from another marriage.

Traditionally the new spouse would receive a life estate ( the ability to live in the home for the rest of their life) and the children of the deceased parent who owned the home would receive the remainder of the property after the death of the surviving spouse or their step parent.

A Florida Estate Planning Lawyer can create documents that change or alter the homestead rights of a surviving spouse. Remember that it may not be your spouse making the decision, but the government or an agent acting under a power of attorney who make the decision and they may not agree with what you and your spouse decided upon years earlier. It is best to create a post nuptial agreement or valid waiver to address these issues while everyone agrees and before it is too late.

Contact a Jacksonville Estate Planning Lawyer or Florida Estate Planning Lawyer to discuss creating documents that address these issues and protect your spouse and children from the influence of others.

The Homestead Exemption in Florida, which was established in the State's Constitution, has always provided for the protection of the Family home free from creditors and liens. In 1985 the Constitution was amended to extend the protection to the "natural person" and not necessarily having to be the head of the household. The 4th district Court of Appeals ruled that a husband and wife who are separated for a period of time can BOTH claim the Florida Homestead Protection from creditors. This ruling does nothing to allow two homestead tax deductions. Law v. Law et al., 738 So. 2d 522.

The case involves a husband and wife who were separated for several years. They both claimed Homestead exemption for the Hollywood home that they owned jointly. But when his mother got sick, he and his wife decided to sell the home to pay for the medical bills. His ex-wife had a claim against him for support and brought action to seek recovery through the sell of the home. He filed for Homestead exemption. The court of appeals ruled that "we see nothing inconsistent with our public policy if we extend a homestead exemption to each of two people who are married, but legitimately live apart in separate residences, if they otherwise meet the requirements." Court referencing Colwell v. Royal International Trading Corp., 226 B.R. 714 (Bank S.D. Fla. 1998) to show precedent on allowing dual homestead exemption. The court seemed to find it important to find that the separation was not contrived to defraud creditors.

If you would like to talk about how to create two homesteads and document them to avoid unnecessary litigation over the issue, contact a Florida Estate Planning Lawyer or if one or more of your home is in foreclosure contact a Jacksonville Foreclosure Defense Lawyer.

Whether a death is expected or unexpected, the deceased will probably die with some outstanding debts. It is the responsibility of the estate of the decedent to pay whatever outstanding debts are owed. If you are wondering whether a debt owed by a recently deceased person is collectible, a probate judge will make that decision for you under Florida Statutes. Normally, tax debts are collected first followed by probate fees and all other debts including mortgages, account payables and credit card bills.

In order to pay the remaining debts the executor of the estate will use estate assets, which may require selling off illiquid portions of the estate to create funds to pay the debts. However, if there are not enough assets in the estate to cover all the debts then you may be left wanting. A creditor must file a claim with the estate within a fixed date after the death of the debtor. Therefore, you will go onto a list of creditors to be paid if you meet this deadline. A creditor will always be paid before a beneficiary unless the beneficiary also can make a claim as a creditor. As a result, if an individual leaves their estate insolvent, creditors will end up with their pockets full while your beneficiaries end up with nothing.

With an economy still slow to recover, more and more estates are left insolvent. A Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer may be able to assist you in creating an Florida Estate Plan that can protect assets from some types of creditors and allow your heirs to receive a larger portion of your estate. If you would like a Free Florida Probate Handbook, let us know

When a person dies, who owned a property protected by a Florida Homestead we generally expect the property to be free from the claims of creditors.

There are certain situations when this is not true and other types of planning could prevent creditors from making claims against your Florida Homestead.

So when will your property lose homestead protection upon your death:
1) if you are not survived by a spouse or children and devise your property o people not listed in Florida Statute 732.103.
2) If you are not survived by a minor child and have a valid prenuptial agreement or waiver of homestead rights with your spouse and devise the property to someone not named in Florida Statute 732.103.

(Florida Statute 732.103 deals with the spouse, descendants, parents, siblings, grand parents, uncles, aunts, their kindred, and great-grand parents.)

If you want to leave your homestead to someone who is not defined in Florida Statute 732.103 we can help you maintain protection from the claims of creditors and avoid probate. Since there can often be many unexpected and significant expenses associated with end of life, it could be a good idea to plan to protect what could be your single largest asset- your home.

Note that many people incorrectly believe that a Revocable living trust can protect your home from the claims of creditors. While there may be homestead protection for those defined in Florida Statue 732.103, a Florida Revocable Trust in an of itself does not provide asset protection.

To talk about how to protect your assets and home from the claims of creditors, contact a Florida Estate Planning Lawyer.

as a Jacksonville Foreclosure Lawyers who also practices Florida Probate Law I see many Florida Estates where the decedent's home has negative equity. If you are appointed the Personal Representative of a Florida Probate you should explore Florida Foreclosure Defense. You may have a fiduciary duty to do so and preserve the assets of the estate.

If you are considering a Florida Foreclosure Defense you will need to do a Formal Administration of the Probate so that a Florida Personal Representative can be appointed to defend the Florida Foreclosure and pursue counterclaims on behalf of the decedent's estate or beneficiaries.

For more information on Jacksonville or Florida Foreclosure Defense See the Florida Foreclosure Defense Lawyers Blog.

While in Florida a lawyer is not required to create a valid deed like a ladybird deed or Florida Enhanced Life Estate Deed it may be a good idea to have a lawyer or attorney review these specific document because of their propensity for errors and the bad or unexpected outcome that would occur with an invalid or incorrect Florida Enhanced Life Estate Deed.
1. A lawyer can check to make sure that the deeds are executed with the formality required under Florida Statutes.

2. That an Florida Enhanced Life Estate Deed is the best method of accomplishing your goals. With property with larger mortgages, a deed of this type may not be the best or most affordable method for transferring the property upon the death of the owners because of the mortgage taxes in Florida.

3. In addition, some of the forms and Florida Enhanced Life Estate Deeds that I have seen do not properly deal with the property upon death and title companies have been known to require a probate before they will issue a new title policy. This can cost the family thousands of dollars on a homestead and up to 3 percent of the value of the home on non-homestead properties.

4. Prevent a portion of the property from lapsing, Florida's anti-lapse statute deals with devises by will and in trusts but would not protect an interest in a property that was given to an individual who predeceased the grantor of the deed. Because a Florida Enhanced Life Estate Deed is a contingent gift, it is possible that the remainder interest would be directed back to the estate of the grantor in a case were the contingent remainder beneficiary of the deed was to predecease the grantor.

5. The most important reason to use a lawyer with a Florida Enhanced Life Estate Deed deals with the circumstances surrounding the use of this type of deed. Often when a lawyer prepares these deeds they the process will cause them to evaluate the other financial, estate planning, elder law, and Medicaid planning that are found when these deeds are used. Paying a lawyer who is familiar with these issues to prepare your deed is a good way to have your personal circumstances and issues evaluated at the same time.

If you would like more information on a Florida Enhanced Life Estate Deed you should Contact a Florida Estate Planning Lawyer who is familiar with these issues.

In aFlorida Probate, where the decedent did not have a will, Florida's intestate laws of succession define how property will be distributed between the person's family members.

If there was a surviving spouse and no lineal descendants the spouse will receive everything in the decedent's estate.

If there is no spouse but there are lineal descendants (children) then the estate is split equally between all surviving children. If a child predeceased their parent and had children of their own, that child's share will be equally divided between his or her children (the decedent's grandchildren). If the child that did not survive the parent did not have children, that child's share will go to his or her siblings equally.

If there is a surviving spouse and descendants and:

1. all of the descendants are also descendants of the surviving spouse, the surviving spouse will receive the first $60,000 plus 1/2 of the remaining estate, with the balance being shared between the lineal descendants.
2. one or more of the lineal descendants is not a lineal descendant of the surviving spouse, the surviving spouse receives 1/2 of the probate estate and the lineal descendants receive the other 1/2 of the probate estate.

If there is no surviving spouse and no lineal descendants the probate property goes to the decedent's surviving parents and if none, then to the decedent's siblings or the descendants of any deceased brothers or sisters.

There are other provisions in the Florida Probate code which provide for exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported.

If you need help with a Florida Probate and determining your rightful share of an estate in Florida you should contact an attorney familiar with Florida Probate or a Florida Estate Planning Lawyer.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

A Summary Administration in Florida is an abbreviated Florida Probate proceeding where estates with assets of less than $75,000 or those where the decedent has been dead for more than 2 years can simplify the probate process. We often find that the families of people who die with a home or other property do not properly administer their loved one's estate at the time of death and must go back to clear up the title so that the property can be sold or transferred properly at some later date.

When a piece of real property is involved in the estate, we have to ask the court to determine if the property is protected as a Florida Homestead or is subject to the claims of creditors. Once this determination is made the property can be transferred properly.

If you need help clearing up the title of a home or property located in Florida that belonged to a person who died, we can help with a Florida Summary Administration, please Contact a Florida Probate Lawyer for more information on this process.