The Florida homestead exemption is the most detailed of any state, especially when it comes to inheritance rights. The exemption not only cuts taxes and gives the heirs protections against the decedent’s creditors, but the law also dictates how a homestead has to be passed to minor children and spouses. Because of the complexity of Florida homestead laws, hiring a Miami estate attorney is the best way to make sure that having a homestead exemption can be worked into your estate plan or navigated in the probate court.
In order to establish a Florida homestead, a homeowner has to file paperwork with the clerk in their county stating that they are living in their home permanently as of January 1st of that year. The homeowner must also state that the home is their permanent residence. Finally, the homeowner must file the correct paperwork before the 1st of March. For estates, the personal representative must file paperwork with the probate court stating that the decedent’s home was subject to the homestead exemption and have the property be declared as homestead by the probate judge.
Once the homestead exemption is filed, there are certain rights that come into play for the homeowner or the homeowner’s estate. The homeowner will have an exemption for some property taxes under the homestead exemption. There are also protections against having creditors force the homeowner to sell the home. Both of these advantages to the homeowner also exist when the homestead exemption is filed with the probate court. This means that the estate would not have to sell the decedent’s home to pay off estate creditors.
What must be kept in mind when filing for a homestead exception are the laws that come with it when it comes to inheritance rights. It is for this reason that you should consult with a Miami estate attorney before you consider it. If you have no minor children and no spouse, you can leave your property subject to a homestead exemption to anyone, meaning that you can leave one or all of your children out of your will if you’d like. However, if you have a surviving spouse and put any restrictions on the homestead property, that spouse would only get what is called a life estate. A life estate would only give that spouse the right to the property until his or her death. To have the property go directly to your children, your spouse would need to have signed a pre or post-nuptial agreement.
Things become more complicated if minor children are involved. If you are married with minor children, the property would go to your spouse. However, if you only have minor children, the property must go to those children. This is why it is better to designate a guardian of those minor children in your estate plan, and this also why the children’s share may be subject to the control of the probate court. If minor children and a homestead property are involved, you need a Miami estate attorney to assist you with an estate plan or probating the estate. Call the Law Offices of Albert Gurevich at (786) 522-1411.