Homestead Rights

Homestead Rights in Florida Probate Law

For such a specific type of law, probate would seem to be fairly straightforward and perhaps less complex than other types of law. However, with the inclusion of various types of legislature including homestead rights, probate law unfortunately isn’t quite so simple.

Understanding the purpose of homestead and the sometimes complicated rules associated with it are often difficult. At the Law Office of Silverman, Mack & Associates, our Gainesville, FL probate lawyers are experienced and ready to assist in this difficult-to-understand area.

Qualifying for Homestead Rights

The qualification process to label a home as a homestead property is surprisingly simple. The three criteria are listed below.

  • The home for which you are applying for homestead must be the permanent residence.
  • A title to the home must be held on January 1 for the year in which you are applying.
  • An application must be completed no later than March 1 in person at the county appraiser’s office.

Factors of Homestead Rights

Homestead rights cover three distinct parts.

  • Real Estate Taxes: Homestead rights on an eligible home can offer significant savings when it comes to real estate taxes. The amount of a discount for which your home is eligible will vary from person to person. Generally, this protects your home’s real estate from increasing by no more than 3 percent.
  • Protection for Creditors/Judgments: A home under the homestead distinction is also protected from a forced sale by any creditor, including a judgment against a homeowner in a court of law. Regardless of the amount of the homestead property or the amount of the judgment, a homestead cannot be forcibly sold to meet the financial requirements of a creditor or court judgment. This often becomes an important factor for homeowners with multiple properties when deciding which property will receive homestead status.
  • Death and Distribution: By far the most complex part of homestead rights involves the convoluted rules regarding the distribution of a homestead property upon the death of a homeowner with these rights attached to a property.

Distribution of a Homestead Property

Many factors make up a complex decision tree once a homestead property owner has passed. The majority of factors revolve around the presence or lack of a surviving spouse and whether surviving children are adults or minors. Each situation presents its own set of rules and guidelines.

  • No surviving spouse or minor children. In this situation, a homestead owner has complete freedom in choosing who inherits the homestead property. For example, he or she can leave equal parts of the property to any adult children or even leave the property completely to one child instead. Realistically, the homestead owner can leave the property to anyone he or she chooses.
  • Survived by minor child(ren). In previous iterations of the law, this situation would dictate that the homestead property be passed down in equal portions to all surviving minor children, and guardianships be established by a court judge until the minors become of age. However, in its current state, the law explains that a homestead owner now has the ability to establish a trust for surviving minor children. When the trust is established, the homestead owner decides at what age the property is passed down to the minor(s). Working closely with our probate lawyers in Gainesville will ensure that a proper trust is established in this situation.
  • Survived by a spouse. This situation generally dictates that a surviving spouse receives a life estate, which allows the spouse to remain living in the residence yet is responsible for all taxes and insurance associated with the homestead. This estate also dictates that the surviving spouse cannot demand that surviving children sell the property and vice versa. However, there are two exceptions to the above situation in terms of a surviving spouse.
    1. A prenuptial or postnuptial agreement can be established in which a surviving spouse waives his or her rights to the homestead.
    2. A surviving spouse may also choose to divide the property evenly among themselves and the surviving children. This must occur within a specified period of time after the deceased has passed.

Gainesville Probate Attorney

At the Law Office of Silverman, Mack & Associates, we are able to apply our knowledge of probate law and homestead rights to each individual case. Probate lawyers at our Gainesville office are ready to assist you and answer your questions relating to probate and homestead rights. No matter how complex your situation is, our Florida probate lawyers are ready to help.