Florida Homestead: Did I Abandon My Homestead Protections Allowing Attachment from Creditors?

Homestead Abandonment

Homestead is one of the greatest benefits of being a Florida resident.  Article X, Section 4 of the Florida Constitution affords three benefits of homestead status:

1. Exemption from taxes
2. Protection from forced sale or attachment by creditors
3. Restriction on alienation and devise.

Homestead status is established when a natural person intends to make and actually maintains the real estate as the principal residence.  A homestead is "abandoned" by taking up permanent residence at a distant place.  The issue is what constitutes abandonment in between these two extremes.

Not Abandonment:
One year absence from property to cope with divorce.
Temporary absence and renting the homestead if no other property is owned.
Husband and wife living in a farm house in a different county than homestead during harvest season.

Abandonment:
Owner is absent, allows driver's license to expire, obtains license and registers to vote in another county.

Bottom Line:  contact your attorney before leaving home!

Jennifer Neilson
NEILSON LAW, PA

Florida Probate - can a disinherited child contest a will in Florida?

Yes, but the better question is... could a disgruntled child win a will contest. 

Any interested person may object to the validity of a will, however the burden shifts to the contestant if the will has a self-proving affidavit in accordance with Florida law.
Bottom line: Retain a Florida estate planning attorney to draft your will to assure your wishes are followed and the protect the document from frivolous attacks.

Florida Statutes 733.107. Burden of proof in contests; presumption of undue influence

(1) In all proceedings contesting the validity of a will, the burden shall be upon the proponent of the will to establish prima facie its formal execution and attestation. A self-proving affidavit executed in accordance with s. 732.503 or an oath of an attesting witness executed as required in s. 733.201(2) is admissible and establishes prima facie the formal execution and attestation of the will. Thereafter, the contestant shall have the burden of establishing the grounds on which the probate of the will is opposed or revocation is sought.

(2) The presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301-90.304.

 

 Call Neilson Law, P.A. to discuss your estate plan.

Estates: My deceased family member had little assets, is it worth administering the estate?

Maybe.  If the decedent had minimal personal property (cash) and many creditors it may appear fruitless to administer the estate, however if real estate is involved there may be an unattachable pot of gold.

If decedent maintained a homestead in Florida with equity, the equity passes to heirs free and clear of creditor claims (except real estate creditors, i.e. mortgagees, etc...).

If you are an "heir" of decedent your attorney may petition the court to establish homestead of the real estate and if granted, the order will cause title to vest in the "next of kin" free of claims.  (See below to determine if you are an "heir" of decedent.)  See Article X, Section 4(b) of the Florida Constitution

The decedent's homestead is not an asset of the probate estate however it is frequently controlled and preserved by the Personal Representative for the beneficiaries during administration of the estate.  Typically, a creditor publication is required prior to a probate judge granting a Petition to Establish Homestead.

In summary, should you administer the estate?

1. Is the real estate the decedent's homestead?
2. Is there equity in the homestead?

If the answers are "yes" and "yes", then yes!

Call NEILSON LAW, PA regarding a Petition to Establish Homestead.

Who is an "heir"?
Section 731.201(18) of Florida Statutes defines heirs or heirs at law as “those persons ... who are entitled under the statutes of intestate succession to the property of a decedent.” 

Who receives under intestate succession?
(1) To the descendants of the decedent.

(2) If there is no descendant, to the decedent's father and mother equally, or to the survivor of them.

(3) If there is none of the foregoing, to the decedent's brothers and sisters and the descendants of deceased brothers and sisters.

(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent's paternal, and the other half to the decedent's maternal, kindred in the following order:

(a) To the grandfather and grandmother equally, or to the survivor of them.

(b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.

(c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.

F.S. 732.103

How do I transfer Florida Real Estate of Deceased Non-Resident?

Unfortunately, probate. 

There are various procedures to transfer a decedent's Florida real estate to the surviving spouse, beneficiaries of domicile estate depending on: (1) the value of the real estate, (2) the amount of time since death, and (3) if domiciliary proceedings have occurred.  Florida law provides simplified probate in several incidences of ancillary administration. 

If the decedent died with a will and less than $50,000.00 in Florida assets, the foreign Personal Representative (appointed in the state of domicile) may petition the Florida court to admit the foreign will to probate in Florida with a authenticated transcript of the domicile probate record.  Publication to creditors is optional. F.S. 734.1025

Ancillary summary administration is available for intestate estates (no will) if the Florida assets are less than $75,000.00. Florida Probate Rule 5.470 states:

(a) Petition. The petition for ancillary letters shall include an authenticated copy of so much of the domiciliary proceedings as will show:

(1) for a testate estate the will, petition for probate, order admitting the will to probate, and authority of the personal representative; or

(2) for an intestate estate the petition for administration and authority of the personal representative to act.

(b) Notice. Before ancillary letters shall be issued to any person, formal notice shall be given to:

(1) all known persons qualified to act as ancillary personal representative and whose entitlement to preference of appointment is equal to or greater than petitioner's and who have not waived notice or joined in the petition; and

(2) all domiciliary personal representatives who have not waived notice or joined in the petition.

(c) Probate of Will. On filing the authenticated copy of a will, the court shall determine whether the will complies with Florida law to entitle it to probate. If it does comply, the court shall admit the will to probate.

 

Call Neilson Law today to determine the right probate procedure!

Is it possible to Probate a COPY of a Will without the ORIGINAL in Florida?

Yes.  Florida law presumes that a will has been lost or destroyed if the original is not located, however that presumption may be overcome.  Florida Statutes provide a procedure for probate of a lost or destroyed will.  Section 773.207 states:

"Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness."

 

Florida Probate Rule 5.510 governs the procedure for probate of a lost or destroyed will.  

Rule 5.510. Establishment and Probate of Lost or Destroyed Will

(a) Proceeding. The establishment and probate of a lost or destroyed will shall be in one proceeding.

(b) Petition. The petition, in addition to reciting information required under these rules for petition for administration, shall include a statement of the facts constituting grounds on which relief is sought, and a statement of the contents of the will or, if available, a copy of the will.

(c) Testimony. The testimony of each witness in the proceeding shall be reduced to writing and filed and may be used as evidence in any contest of the will if the witness has died or moved from the state.

(d) Notice. No lost or destroyed will shall be admitted to probate unless formal notice has been given to those who, but for the will, would be entitled to the property thereby devised.

(e) Order. The order admitting the will to probate shall state in full its terms and provisions.

 

If you are an interested party in a decedent's estate and you are unable to locate the original will, you may administer the estate with a copy by meeting the Florida statutory requirements.

 

NEILSON LAW, PA

Does an estranged spouse have any claim to your Florida homestead?

Yes! Regardless of whether or not your spouse still resides in the marital home, he or she has claim to a share of the homestead upon your demise.

Example: You have not seen your spouse in years.  You no longer maintain a life together and have not spoken to him or her in years.  You are aware of the debtor friendly Florida homestead laws that protect your homestead from most creditors allowing it to pass free and clear to your descendants and decide to  bequeath your primary residence to your adult children leaving nothing to your spouse.

If you execute a Last Will and Testament devising your homestead to your children alone, your spouse is entitled to claim a life estate in the homestead.  Pursuant to Section 732.401 of Florida Statutes "if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent's death".  F.S. 732.401(1).  Your spouse also has the option of electing to take an undivided one-half interest in the homestead as a tenant in common. F. S. 732.401(2)

The claim is not automatic.  The election must be made within 6 months after the decedent's death and during the surviving spouse's lifetime.  F.S. 732.401(2)(b).

Bottom line:  If you want to disinherit your spouse, you require a properly executed ante-nuptial agreement (post-nup).

Florida Eviction of Residential Tenants - Lee County Real Estate: How do I evict a tenant for non-payment of rent?

Florida Eviction of Residential Tenants - Lee County Real Estate

How do I evict a tenant for non-payment of rent?

     If a tenant fails to pay rent when due Florida law provides that a landlord or its agent may serve a three day notice cure on the tenant.  (Florida Statute 83.56) The following is the statutory notice form:

You are hereby notified that you are indebted to me in the sum of ____ dollars for the rent and use of the premises (address of leased premises, including county) , Florida, now occupied by you and that I demand payment of the rent or possession of the premises within 3 days (excluding Saturday, Sunday, and legal holidays) from the date of delivery of this notice, to wit: on or before the ____ day of ____, (year) .

(landlord's name, address and phone number)

     The notice may be served by mailing, hand delivery or posting if the tenant is absent from the premises.  When calculating expiration of the three days do not include Saturdays, Sunday or legal holidays and if mailing the notice, you must add five (5) days to the deadline.  

     Where landlord elected to mail notice of overdue rent, Civil Rule 1.090(e), which provides that when party to civil action conducts service by mail an additional five days must be added to period of time designated for response or compliance, extended three-day period during which tenant, pursuant to West's F.S.A. § 83.56(3), was required to respond or face eviction. Investment and Income Realty, Inc. v. Bentley, App. 5 Dist., 480 So.2d 219 (1985).

     If the tenant fails to cure as demanded, the landlord may file suit for possession of the premises (F.S. 83.59), monetary damages (F.S. 83.625, if the tenant is served by personal service or certified/registered mail if allowed by law) and attorneys fees (F.S. 83.48, even if the lease does not provide for it; applicable to residential tenancies only)

     Call Neilson Law, PA today for a free tenant eviction quote!   (239) 443-3866 

Attorney Jennifer Neilson presenting at Gulf Harbour Golf & Country Club

Attorney Neilson will speak about Estate Planning (Wills, Trusts and Powers of Attorney), Misconceptions about Florida Law, Probate Avoidance, Homestead and Spousal Election at an invitation only luncheon in Fort Myers.  For information regarding future speaking engagements, visit our website.  www.neilsonlawpa.com

Neilson Law, P.A. will exhibit at the Big Boy Toy Show in Fort Myers

Attorney Jennifer Neilson of NEILSON LAW, P.A., a Florida lawyer concentrating in probate, trusts, and estate planning will exhibit at the Big Boy Toy Show on March 31 and April 1 at the Civic Center in Fort Myers, Florida.  http://www.bigboyshow.com/

Visit our booth for special prizes!!!

In Florida Probate when is the deadline to object to the Will or Personal Representative?

 Three months from service of the Notice of Administration. 

A Florida personal representative shall promptly serve a copy of the notice of administration on the following persons who are known to the personal representative:

(a) The decedent's surviving spouse;

(b) Beneficiaries;

(c) The trustee of any trust described in s. 733.707(3) and each qualified beneficiary of the trust as defined in s. 736.0103(14), if each trustee is also a personal representative of the estate; and

(d) Persons who may be entitled to exempt property

F.S. 733.212 (1)

 Florida Statutes Section 733.212(3) states:

Any interested person on whom a copy of the notice of administration is served must object to the validity of the will, the qualifications of the personal representative, the venue, or the jurisdiction of the court by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred.

 

 In a recent Florida case, decedent's mother filed an objection to the appointment of a foreign Personal Representative alleging that the non-resident, non-family member was not qualified.  The court disallowed the objection as time barred.  In ruling against the mother, the court relied on F.S. 733.212(3)  which bars untimely objections to qualifications of personal representative except where fraud, misrepresentation or misconduct is not apparent on the face of the petition for administration or discovered within the three-month limitation period.  Hill v. Davis, 36 Fla. L. Weekly S487 (Fla. 2011)

NEILSON LAW, P.A.