Legal Question in Wills and Trusts in Florida

Petition to Determine Homestead

In Hillsborough County, FL, there are five adult children listed in the will as beneficiaries of a homesteaded house. One beneficiary is also named executor. Will is currently in probate w/sale pending on house. Two creditors have made a claim. House set to close 2/28/06 and 90-day deadline for creditors claims ends 3/22/06. If a Petition to determine homestead IS filed prior to sale of house does that mean all proceeds minus closing costs & realtor commissions would be dispursed by title company directly to each beneficiary? Or, if petition is NOT filed, does that mean all proceeds are dispursed directly to named executor/representative of will, who then dispurses proceeds minus executor fees, costs, etc. to beneficiaries? Also, if petition is NOT filed w/court, would creditors receive payment even though house was previously homesteaded years ago? In other words, does the petition have to be filed to prevent creditors from being paid out of proceeds of sale and who mandates how expenses are reimbursed to the representative? Also, are attorney fees taken directly from proceeds by the title company or is the representative required to pay atty and then be reimbursed by other beneficiaries for their share of expenses?


Asked on 2/08/06, 3:03 pm

1 Answer from Attorneys
Thomas Shigo The Shigo Law Firm, P.A.

Re: Petition to Determine Homestead

I am assuming that 1.) the property was homestead of the decedent; 2.) at least one of the beneficiaries is a child of the decedent; and 3.) the will DOES NOT direct that the property be sold and the proceeds distributed.

If these assumptions are true, the homestead property never really becomes a part of the probate estate. And more importantly, the proceeds of the sale are not assets of the estate. The better practice would be to have the probate court make the determination of homestead before the sale. This will help avoid having to spend time and money defending creditor claims on the proceeds. However, a determination after the sale should not change the homestead character of the property or make the proceeds subject to estate administrative expenses or creditor claims. With that said, the petition to determine homestead should be filed and pursued.

It is OK to email me directly if you have additional questions. Good Luck.

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Answered on 2/10/06, 3:58 pm


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