Florida Probate Litigation Lawyer Blog
The process of preparing and executing a will and proceeding to probate can be complicated, emotional and stressful. Regardless of whether a decedent has executed a will, trust or any other estate planning documents, probate proceedings can be unpredictable and can give rise to major anxiety for all parties involved. This feeling is often magnified when loved ones must also deal with a decedent’s creditors. Very often, beneficiaries and loved ones are not aware of each and every creditor who may file a claim for repayment against the decedent’s probate estate. While there are rules limiting the amount of time that creditors are allowed to bring any claims, it can nonetheless be unnerving not knowing how much, if anything, will be left in the estate after all creditor claims have been settled.
In Florida, one way the property of a decedent is protected from creditor claims is through the protections afforded to homestead real property. Under the Florida Constitution, one’s homestead property is exempt from forced sale during the owner’s lifetime. Further, this exemption inures to the surviving spouse or heirs of the property’s owner upon that person’s death. In order for a property to count as a homestead, the title holder must live on the property and it must be both their primary and permanent residence. That’s not to say, however, that the title holder is not allowed to leave the homestead for a period of time, own other properties, etc. The owner may, though, only claim one property as his or her homestead.
Once it has been determined by the probate court that the property in question should be considered homestead, the property will officially be exempt from creditor claims. However, there are still a few exceptions to be wary of. Creditors can still defeat the homestead exemption for: (1) taxes and assessments specified under Article X, §4(a) of the Florida Constitution, (2) encumbrances voluntarily entered into, (3) liens that attach before the homestead was created, and (4) liens for work performed on the property.
Upon the decedent’s passing, Florida’s homestead exemption passes from the decedent to the decedent’s heirs at law. The heirs who inherit the homestead property generally can do with it as they please, but creditors cannot step in and force a sale of the property in order to collect outstanding debts. If the heirs do choose to liquidate the property, Florida courts have still typically held that creditors are unable to collect absent some extraordinary or unique circumstance. It should be noted, though, that homestead property is not freely devisable when a decedent is survived by a spouse and/or minor child. So while a homestead property may still be protected from creditor claims, a decedent survived by a spouse or minor child is not free to alienate the property away from the spouse or child.
