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Risks to Your Florida Homestead in Probate [Video]

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Risks to Your Florida Homestead in Probate

In Florida, what are the risks to your homestead in a probate? Find out more about probate, visit our website 👉

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Hi, I’m Carrie Felice, the probate department chair with Elder Needs Law. In what circumstances my antecedents homestead property not be exempt from creditor claims. The Constitution of the State of Florida provides protection to your homestead property from the claims of most creditors. This means that a creditor cannot force the sale of your home to satisfy debt you owe them unless you have affirmatively agreed that they can do so. So there’s your mortgage lender, your homeowners association, or even the contractor that put the new roof on your house. Those are the only types of creditors who can foreclose on your homestead. This protection from the claims of most of your creditors is usually passed to your heirs when they inherit your homestead property after your death. The main reason the drafters of the Florida constitution included this was for the protection of widows and children. They wanted to make sure that if something happened to you, your spouse and children would have a place to live for the remainder of their lives that couldn’t be taken by creditors. It is this possessory interest, this ability to live in the property that provides the protection from creditor claims. Therefore, if a decedent who has no surviving spouse or minor children, has a will or a trust that directs that their homestead be sold and that the proceeds from the sale be divided among their heirs, the homestead in its proceeds would lose its protection from creditors. So if the seasons Will or Trust contains a directive to sell the homestead the homestead becomes no different than any other monetary asset, and is then subject to the claims of the decedent creditors. Another reason that inherited homestead property might lose its creditor protection is if it is devised and the decisions will or trust to someone who is not considered a lineal descendant of the decedent under the Florida probate code. A decedent who does not have a surviving spouse or minor children is free to leave their homestead in a will or a trust to whomever they please. However, in order for the homestead to retain its character as an asset exempt from the claims of creditors, it must be left to the class of people described in chapter 732 of Florida Statutes. This means it must be left to a lineal descendant of the decedent, or a lineal descendant of the decedent’s last spouse who predeceased them. A lineal descendant can be your children or grandchildren’s great grandchildren, basically the line that you have created or it can mean the line that you came from your parents, grandparents, siblings, aunts and uncles, nieces and nephews. Basically, any blood relatives or Kindred is what the statute calls it would qualify or any kindred of the last spouse who predeceased you. However, if you have devised your homestead to your best friend, your next door neighbor, your favorite charity, then the homestead is not an exempt asset and would be subject to the claims of creditors. If you need help with probating your loved ones homestead or other assets, please contact us today to set up a probate consultation. Thank you!