Homestead Protection is a fundamental part of most probate cases.
I’m sure you’ve heard the phrase: “Your house is your castle”. Well in Florida, that’s true.
There is broad protection for homes, and that protection passes on to your heirs. At the top are surviving spouses and minor children. For them, there are certain types of automatic protection. The house cannot be given away if there are minor children. Likewise, surviving spouses can receive the home for the remainder of his or her life.
Homestead Protection automatically passes to someone free of creditor claims if he or she would receive the asset under intestate law. In other words, if you are a parent, child, brother, or other close family member, you receive the item free of claims. The exception are things like a mortgage or lien. Those bills need to be paid.
Homestead protection covers some probate costs too.
In a probate case, personal representatives can charge a 3% fee for her services. Homestead to a spouse or child is not part of the estate, and thus is not part of that cost. Same with attorney’s fees. Those fees are based on the value of the estate. It’s my opinion that because homestead is not part of the estate, it should not be considered in determining attorneys’ fees.
With siblings, the devise is not automatic. But the protection is still there. A person can name his or sisters as the beneficiaries, and there is still Homestead protection. With your children, though, the devise is automatic. It passes completely outside of the probate estate.
Homestead protection can be transferred to descendants thru a revocable trust, also. It’s important to add certain language in the trust stating that the person retains “equitable title” to the home. Once this is done, the home retains the same protection and can be part of a trust. This is a nice way to avoid probate and retain Homestead protection.