Legal Question in Wills and Trusts in Florida

If probate is required to administer estate property, resolution of any homestead issue may be part of the process, but if probate is not required, which is a purpose of revocable trusts, filing a petition only to determine homestead is not required. This is general legal information based on the facts described in the inquiry; a detailed review of relevant documents would be required for a specific legal opinion.

It depends upon what the deed says. If it only has the decedents name on it with no joint ownership or life estate provisions, and it was their homestead, then the petition is needed. If it wasn't their homestead, then a probate proceeding is needed.

If there is something like a joint owner or other survivor provisions, then no court action would be required other than recording some documents.

For the best answer, consult with an attorney so you are not guessing at an answer.

Homestead property carries particular rights for the surviving spouse and minor children. The Homestead laws are very powerful and may have a significant effect on the disposition of the property. My office can help you determine the next steps that you need to take. Please contact us at www.isternlaw.com

A general but guarded response would be that the petition would not be necessary in your case, Such an answer will no doubt cause a good deal of confusion, therefore if you can use your browser you may be able to look up a past Florida Bar Journal article prepared in 1990 as follows: The Homestead Devise Trap, 64 Fla. Bar J. 17 (Nov.1990). If the Deed was originally deeded to an Irrevocable Trust, then there is no doubt under the FL constitution that what is called an "alienation" of the homestead took place, since the person who deeded it is not the same person who is the sole trustee of the Irrevocable trust, nor does the granting party have any power to revoke the trust and take back the deed; there is some confusion which resulted from a past Florida Judge's ( Hersey ) that says that when 1 individual grantor conveys to his/her own sole trust that he/she can revoke at their discretion, then no "gift, sale, nor mortgage" took place and therefore no clear alienation as permitted by the Florida Constitution has taken place. However if the deed was from two people (even Husband and wife) to a single person's trust then this should be considered a "gift" and a clear alienation that is valid.

However if the deed is in a Trust which was revocable by the Settlor/Grantor, then you come into all of the restrictions having to do with the spouse and the minor children of the Grantor when there is a transfer following his/her death, and perhaps the spouse getting a 1/2 interest by statute if she/he so elects or only a life's use and possession of the property with it going to all of the grantor's children on his/her latter death.

Also use your browser to look up Florida law, namely FS 732.4015(2).

Hope this is not too confusing, therefore Attorney Stern's remarks above should be heeded.