When probate occurs, a surviving spouse is understandably concerned about whether the home they shared with the decedent could be taken to fulfill a debt owed by the decedent. However, under Florida law as long as this home is considered a “homestead” this real property is shielded from the claims of creditors.
Under Florida law, homestead property is any real property that is owned or used for permanent residency and living purposes. A homestead does not encompass any real property that is used for commercial purposes. For a residential space to receive homestead protection, legal and beneficial title to this property must be held and recorded in the county records where the property is situated. Any residential space rented to another for more than 6 months is considered commercial property and thus not a homestead.
The probate process is only commenced against probate assets. An asset is considered a probate asset if owned solely in the decedent’s name when death occurs. An asset is also a probate asset if owned by both the decedent and a co-owner(s), and there is no automatic succession of ownership upon death for the asset. Creditors cannot reach a homestead if a Florida law applies which restricts the taking of the property to fulfill any of the decedent’s debts.
The probate process is actually very beneficial for those seeking to keep the homestead of a deceased spouse away from the claims of creditors. That is because the probate court is required to conduct a homestead determination in order to determine whether this real property is subject to descent and devisement by the probate court. Real property located in Florida is considered a homestead if it is:
“located outside a municipality, to the extent of 160 acres of contiguous land and improvements thereon…or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family.”
The official determination that a property is consider a homestead basically means that the court is legally exempting the property from being used to pay debts owed by the decedent’s estate. As a result, a homestead will be safe from the claims of creditors. The determination that a property is considered a homestead, is made easy for the probate court, if the property has already received some of the many homestead tax breaks and exemptions offered by Florida.
The death of a spouse or parent can be a difficult and stressful time. This situation can be made even worse if you are concerned that your family home will be taken to fulfill debts to creditors. However, as long as your family home is considered a homestead, your home will be beyond the reach of creditors.
If you are claiming homestead protection for your property, it is best to retain the services of a Miami estate attorney. Call the Law Offices of Albert Gurevich at (786) 522-1411.