Is homestead property a probate asset?
No, homestead property is not a probate asset in Florida. However, the Florida probate court is still often involved in the transfer of the homestead property.
What is a homestead in Florida?
Homestead property receives a number of special protections in Florida. Because of this, the state has a narrow definition of what constitutes a homestead.
According to Article X, section 4(a) of the Florida Constitution, the homestead is real property consisting of no more than 160 contiguous acres outside a municipality, or no more than one-half of an acre of contiguous land inside a municipality, owned by a natural person. It also includes structures (like a house) or other improvements to the land. To qualify as a homestead, the property must be your primary or permanent residence.
Is a Florida homestead part of the probate estate?
Technically, homestead property is not part of the probate estate. This is stated in section 733.607 of the Florida Statutes. Yet, homestead property is still often treated like a probate asset. In other words, a lot of the time the probate court will still need to get involved to transfer the property. Thus, a Florida homestead is not technically a probate asset, but in practicality it is still often treated like one.
Why is the homestead often treated like a probate asset?
There are two main reasons that homestead is often treated like a probate asset and dealt with by the probate court. Both reasons come from the court’s ability to issue a Determination of Homestead, which is found in rule 5.405 of the Florida Probate Rules. The Determination of Homestead is a document from the probate court that states whether or not the property was the protected homestead of the decedent.
The first reason the homestead is treated like a probate asset is to ensure that the property is protected against creditor claims. If the homestead is passing to one of the decedent’s heirs at law, the the property continues to receive homestead protection against creditors. This means that most creditors cannot force the sale of the property or use the property to collect outstanding debts. However, the only way to get the continued homestead benefits is to have the court entire a Determination of Homestead.
The other reason a Determination of Homestead is often used is to clear title to the property. Most of the time, the new owner of the property will want title insurance. And some title insurance companies will not insure the property in some situations without the Determination of Homestead.