In addition, a Florida personal representative may be entitled to further fees and compensation for extraordinary services, including but not limited to:

• selling real or personal property
• conducting litigation on behalf of the estate
• involvement in tax proceedings
• carrying on the decedent’s business
• dealing with protected homestead

Extraordinary personal representative fees would normally be paid hourly, although an alternative arrangement is not precluded by Florida law.  The statute, Section 733.617, requires that a petition be filed to approve the extraordinary compensation.

Yes, the personal representative fee may be adjusted upwards or downwards, upon petition by an interested person, based on the following criteria:

(a) The promptness, efficiency, and skill with which the administration was handled by the personal representative;
(b) The responsibilities assumed by and the potential liabilities of the personal representative;
(c) The nature and value of the assets that are affected by the decedent’s death;
(d) The benefits or detriments resulting to the estate or interested persons from the personal representative’s services;
(e) The complexity or simplicity of the administration and the novelty of the issues presented;
(f) The personal representative’s participation in tax planning for the estate and the estate’s beneficiaries and in tax return preparation, review, or approval;
(g) The nature of the probate, nonprobate, and exempt assets, the expenses of administration, the liabilities of the decedent, and the compensation paid to other professionals and fiduciaries;
(h) Any delay in payment of the compensation after the services were furnished; and
(i) Any other relevant factors.

Among many other things, the Florida Probate Code (Ch. 731 – 735, Fla. Stat.) specifies how and when a beneficiary of an estate will receive his or her share of assets. While pending litigation can substantially delay the distribution of asset, the Code provides for a beneficiary to receive an interim (partial) distribution in a Florida estate while administration and litigation are ongoing.

The individual or entity who presides over the probate process is known in Florida as the personal representative(administrator(trix) or executor(trix) in other jurisdictions). From a technical standpoint, it is the personal representative who facilitates distribution of assets to the beneficiaries per the terms of a will (testate) or Florida law (intestate).

The Probate Code, which sets forth the powers of a personal representative, explicitly authorizes the personal representative to make a partial distribution, or interim distribution, to beneficiaries. Fla. Stat. § 733.612(26). Importantly, this power to make interim distributions during administration is not absolute. Rather, certain predicates must be established, and where there is a dispute as to the propriety of the interim distribution, a court order may be necessary.

Fundamental to the concept of a partial distribution of assets being made to a beneficiary are the existence of (i) a beneficiary and (ii) sufficient assets.

Accordingly, it must be undisputed that the proposed distributee is a beneficiary. Where there is pending litigation as to an individual’s beneficial interest, a partial distribution cannot be made.

Second, there must be sufficient assets from which to make the interim distribution.

The Probate Code only authorizes the personal representative to make distribution of probate assets.

Even if there are sufficient probate assets in the abstract, a showing must be made that the assets sought to be distributed are not necessary to satisfy claims, administrative expenses, taxes, family allowance, exempt property, or elective share. Fla. Stat. § 733.612(26).

If you are a beneficiary of an estate and believe you are entitled to a partial or interim distribution, you may file a petition with the court where the estate is being administered. Upon demonstrating that there are sufficient assets to make the distribution without compromising the estate as set forth above, the court will likely grant the request.

It is important to understand that when an individual buys into a co-op they become a shareholder of the corporation that owns the property.  As this corporate shareholder, the individual is then entitled to the exclusive use of a unit for housing in that property. This definition—treating a co-op as real property—is not uniform throughout the United States.  In fact, most states do not treat co-ops as real property.  In New York for example, where an estimate 99% of the world’s cooperatives are, a co-op is considered personal property and not real property. State Tax Comm’n v. Shor378 N.Y.S.2d 222 (Sup. Ct. 1975) (holding that a co-op apartment is not sold but leased under a so-called proprietary lease, considering the nature of that proprietary lease, which a shareholder in a co-operative acquires, such lease is personalty and not realty).

The purchaser of a co-op in Florida does not hold any type of proprietary interest in the apartment itself, the apartment building containing the unit, or the land upon which the building is situated. See State v. Swinscoe, 376 So. 2d 1 (Fla. 1979).Devise is defined as a testamentary disposition of real or personal property. Fla. Stat. § 731.201(10).  In probate proceedings, a co-op apartment is not considered homestead property for the purpose of the limitations on devise and descent.  The constitutional protections governing descent and devise of homestead property concern an interest in realty.  A co-operative apartment does not meet this definition because co-ops do not give owners of such units title to the apartment or the land the apartment or building is situated on.  In re Estate of Wartels, 357 So. 2d at 710-11.

What is Florida Homestead Property?

Florida homestead property is real property no greater than one-half acre in a city or 160- acres outside a city, owned by a Florida resident, who must be a natural person or revocable trust (not a corporation or other type of entity).  If your Florida property is homestead, you are entitled to certain exemptions and protections under the Florida Constitution.

You can only have one homesteaded real property in the State of Florida.

You must be a Florida Resident to claim the homestead protections and benefit from the homestead exemptions.

If you spend part of your time in Florida and part in another location, there are several indicia of residency that courts will look at if residency is in dispute.  These include where you vote, where you have a driver’s license, where your mail goes, and where you spend most of your time.

Florida homestead protections only apply to property within certain acreage limitations.  If the property is within a municipality, then the homestead exemption applies to:

one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family

If the property is outside of a municipality, then the homestead exemption applies:

to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality.

For homestead protection, the property must be owned by a natural person or revocable trust, not a corporation or any other entity.

1. Provides homesteads with an exemption from taxes;
2. Protects homesteads from forced sale by creditors
3. Places certain restrictions on a homestead owner from alienating or devising the homestead

In bankruptcy, you are not entitled to the unlimited protection against creditors for homesteads.  Instead, the Florida homestead protection only applies if a debtor has lived in Florida for at least 40 months.  The homestead property must not be larger than a ½ acre in a municipality, and 160 acres outside a municipality.

If a debtor in bankruptcy does not meet the 40-month Florida residency requirement the homestead exemption is capped.  The cap per current federal law is $160,375.

A surviving spouse and minor children will always inherit the Florida homestead property, regardless of what the will says.  If there are no minor children and no surviving spouse, the Florida homestead can be bequeathed to anyone.

If there is no will and no minor children, the share of the surviving spouse will depend on whether there are any adult children.

If there are no surviving descendants of the decedent, then the surviving spouse inherits the entire homestead.

If the decedent is survived by one or more descendants, the surviving spouse takes a life estate, with the remainder in fee simple to the descendants.  The surviving spouse may elect to take a 1/2 interest as tenant in common rather than a life estate, discussed below.

If there is no will and no surviving spouse, but decedent was survived by minor children, then the homestead goes in fee simple to the decedent’s descendants in being.

If there is no surviving spouse and no minor children, the Florida homestead passes just like any other asset according to Florida’s law of intestacy.

Share of other heirs.—The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows:

(1) To the descendants of the decedent.

(2) If there is no descendant, to the decedent’s father and mother equally, or to the survivor of them.

(3) If there is none of the foregoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.

(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order:

(a) To the grandfather and grandmother equally, or to the survivor of them.

(b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.

(c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.

(5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.

(6) If none of the foregoing, and if any of the descendants of the decedent’s great-grandparents were Holocaust victims as defined in s. 626.9543(3)(a), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the descendants of the great-grandparents. The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004.

As provided in the Florida Constitution, homestead property cannot be freely devised if the owner is survived by a spouse or minor children.

If the decedent is survived by a spouse and no minor children, the surviving spouse must be bequeathed either a life estate in the property, or the entire fee simple interest in the property.  If the surviving spouse was bequeathed a life estate, the bequest is valid and the remainder interest can be bequeathed to anyone.

If the surviving spouse is bequeathed neither a life estate nor the entire property, the spouse is automatically entitled to a life estate, and any children of the deceased receive the remainder.

Because there are minor children and no surviving spouse, the homestead cannot be devised.  Section 732.4015.  The homestead will descend to the decedent’s descendants in being.

If there is a surviving spouse and minor children, then the homestead cannot be devised.  By operation of law the surviving spouse will receive a life estate, with the remainder to descendants in being.

If there is no surviving spouse or minor children, the homestead can be freely devised.  If the homestead is devised to persons outside of the class of intestate heirs, the protections will not inure to those devisees.

The surviving spouse is permitted, in lieu of a life estate, to elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of decedent’s death.  This is called a tenant-in-common election (“TIC Election”).  The TIC election must be made within 6 months of the decedent’s death and must be recorded in the official record book of the county where the homestead property is located.  Section 732.401.

A one-half tenant in common interest gives the surviving spouse an ownership interest in the homestead, which allows the surviving spouse to bring a partition action to sell the property. If the property is sold, the surviving spouse will generally receive one-half of the proceeds of any sale. Prior to the enactment of the revised Florida Homestead statute, if the Homestead was not devised in a way that was permitted by Florida law, the surviving spouse automatically received a life estate in the Homestead property and any minor children received a vested remainder in the property.  The life estate interest could not be partitioned, which required the surviving spouse and children of the deceased to negotiate a sale of the homestead.  If there was no agreement, the property could not be sold.

These arcane rules strained many family relationships, especially in second marriages. In these situations, the Florida Principal and Income Act governs the allocation of expenses between the life estate and vested remainder interest. The surviving spouse is generally responsible for any interest payments on the mortgage, property taxes, property insurance and repairs and the children are generally responsible for principal mortgage payments on the residence and any substantial capital expenditures.

To add another complicating factor, if the surviving spouse ever wanted to downsize, the surviving spouse had to negotiate with the children to allow a sale and they would have to determine a value for her life estate. While many see the new statute as a beneficial change, it is also important to note that it is to the detriment of the decedent’s minor children in many cases.  A very elderly widow will receive one-half of the Homestead, rather than a life estate which may have zero value.  The real winners in some situations will be the surviving spouse’s children from an earlier marriage.  To read a case study about how homestead, divorce, and surviving spouses intersect, click here.

When a homestead owner dies, the homestead exemptions and protections inure to those people who are within the class of intestate heirs and are to receive the property upon the owner’s death.

“Any person to whom homestead property is devised under a will and who is categorized as an “heir” in the intestacy statute, regardless of whether that person would be next in line had the decedent died intestate, receives protected homestead property under the Florida Constitution.”  Snyder v. Davis, 699 So. 2d 999 (Fla. 1997).

Therefore, whether by devise or by the laws of descent and distribution, if the homestead property is inherited by someone within the class of intestate heirs, the protections impressed upon that homestead inure to those beneficiaries.

Homestead status is determined at the death of the decedent.  See Wilson v. Fla. Nat’l Bank & Trust Co., 64 So. 2d 309, 313 (Fla. 1953).   “[T]he benefits of homestead protections vest in a qualified beneficiary at the moment of a testator’s death…”  Cutler v. Cutler, 994 So. 2d 341, 345 (Fla. 3d DCA 2008).

Therefore, if beneficiaries sell the homestead property after the death of the decedent, because the beneficiaries’ homestead rights attached prior to the sale, “the proceeds of that sale are protected from the claims of the decedent’s creditors.”  White v. Theodore Parker, P.A. (in Re Estate of Hamel), 821 So. 2d 1276, 1280 (Fla. 2d DCA 2002) (property rights, including homestead, passing by virtue of the death of a person vest at the time of death).

Yes, homestead property held by a revocable trust is treated as if held directly by the grantor of the revocable trust.

Section 732.4015 of the Florida Probate Code provides:

(1) As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or a minor child or minor children, except that the homestead may be devised to the owner’s spouse if there is no minor child or minor children.

(2) For the purposes of subsection (1), the term:

(a) “Owner” includes the grantor of a trust described in s. 733.707(3) that is evidenced by a written instrument which is in existence at the time of the grantor’s death as if the interest held in trust was owned by the grantor.

(b) “Devise” includes a disposition by trust of that portion of the trust estate which, if titled in the name of the grantor of the trust, would be the grantor’s homestead.

In Aronson v. Aronson, 81 So.3d 515 (3rd DCA 2012), the decedent had transferred his property to a revocable trust, and then became a Florida resident.  At the time of his death, the property was his homestead property.  The revocable trust bequeathed a life estate to the spouse, in trust, with the remainder interest, in trust, to the decedent’s children from an earlier marriage.  The revocable trust also provided for payments to the surviving spouse of money every year.  The trust held no other assets from which to make the payments or to otherwise pay to maintain the property.

A dispute ensued between the surviving spouse, the decedent’s children, and trustee over how to administer the trust and the homestead property.

The appellate court held that, because the property was homestead property, the property was not subject to disposition through the revocable trust.  At the moment of death, the property passed to its owners:

In a twinkle of an eye, as it were, to his wife for life, and thereafter to his surviving sons.  * * * From that moment forward, the trustees had no power or authority with respect to the former marital home.  The widow became responsible for the expenses of the property, and, of course, remains so for as long as she remains a life tenant.

No.  “Homestead property, whether devised or not, passes outside of the probate estate.”

Clifton v. Clifton, 553 So. 2d 192, 194 n. 3 (Fla. 5th DCA 1989).   “Neither executors nor administrators have at any time in this State had any jurisdiction over the homestead of a deceased person.  The homestead is in no wise an asset of the estate of a decedent.” Cavanaugh v. Cavanaugh, 542 So. 2d 1345, 1351 (Fla. 1st DCA 1989) “[W]hen devised to a qualified heir, decedent’s homestead property is not distributed as part of the decedent’s estate, and passes directly to the designated heir.”  Estate of Shefner v. Shefner-Holden, 2 So. 3d 1076, 1078  (Fla. 3d DCA 2009).  A homestead order is not required “to pass title to persons entitled to homestead property…”  Clifton v. Clifton, So. 2d 192, 194 (5th DCA 1989).

This can be a source of confusion, since the probate court will rule on petitions to determine the homestead status of property and enter orders of homestead.  But, the probate court is basically confirming rights that existed at the time of death, not creating new rights at the time of the entry of a homestead order.

The scope of a personal representative’s authority over a decedent’s homestead property is set forth in Fla. Stat. § 733.607(1), which provides that:

Except as otherwise provided by a decedent’s will, every personal representative has a right to, and shall take possession or control of, the decedent’s property, except the protected homestead.

Fla. Stat. § 733.608 goes one step further, explaining that the protected homestead is not an asset in the hands of the personal representative.  Thus, the default rule in Florida is that, a personal representative is required to take possession of all of a decedent’s non-homestead property; however, homestead property does not become part of the probate estate subject to administration by the personal representative.  See, e.g., Harrell v. Snyder, et al., 913 So.2d 749 (Fla. 5th DCA 2005).

Because of these statutory directives, a personal representative’s exercise of dominion over homestead is limited in both scope and circumstance.  As a general rule, if real property appears to be homestead, the personal representative may:

[T]ake possession of the property for the limited purpose of preserving, insuring, and protecting it for the person having an interest in the property, pending a determination of homestead status.

Fla. Stat. § 733.608(2).

Importantly, this statute does not alter the status of the property—it is still non-probate homestead—it merely outlines what the personal representative can do during the administration process.

Yes.  Section 732.2035 states that: “The decedent’s interest in property which constitutes the protected homestead of the decedent” enters into the elective estate. Section 732.2035, Fla. Stat.

An exception exists if there has been a waiver of homestead rights by the surviving spouse. Section 732.2045(1)(i) governs exclusions and states:

(i) Property which constitutes the protected homestead of the decedent if the surviving spouse validly waived his or her homestead rights as provided under s. 732.702, or otherwise under applicable law, and such spouse did not receive any interest in the protected homestead upon the decedent’s death.

If upon the death of the spouse, the surviving spouse gets fee simple title to the homestead property, then the property is valued at fair market value on the date of decedent’s death.  Section 732.2055(1).

If the surviving spouse takes a life estate, or elects to take a tenant-in-common interest, then the homestead property is valued at one-half of the fair market value on the decedent’s date of death for purposes of the elective estate.  Section 732.2055

No.  The statutory percentage compensation for the personal representative and the attorney for the personal representative for ordinary services is computed based on set amounts and percentages of the compensable value of the estate.  See § 733.617, Fla. Stat. (personal representative commission) and § 733.6171, Fla. Stat. (compensation of attorney for the personal representative).

The compensable value of the estate is “the inventory value of the probate estate assets and the income earned by the estate during administration.”  Id.  The inventory value of the probate estate does not include the value of the homestead real property.  Fla. Prob. R. 5.340 [“include for each listed item (excluding real property appearing to be protected homestead property) its estimated fair market value at the date of the decedent’s death.”].

The value of homestead property is not included in the inventory, because homestead property is not an asset of the estate.  See Fla. Prob. R. 5.340.  See Clifton v. Clifton, 553 So. 2d 192, 194 n.3 (Fla. 5th DCA 1989) (“Homestead property, whether devised or not, passes outside of the probate estate…it is not an asset of the estate.”).

Therefore, percentage fees are not permitted to be taken on the value of the exempt homestead property.

Yes, the probate lawyer representing the personal representative and the personal representative can be paid for working on the homestead property.  However, receiving such fees requires some extra steps, by either filing and perfecting 733.608 lien, or by petitioning for fees for extraordinary services.

If the personal representative opts to take possession of the protected homestead for the limited purpose of preserving, insurance and protecting the homestead, section 733.608(3) provides lien rights to the personal representative.  Section 733.608(3) states, in part, that:

If the personal representative expends funds or incurs obligations to preserve, maintain, insure, or protect the property referenced in subsection (2), the personal representative shall be entitled to a lien on that property and its revenues to secure repayment of those expenditures and obligations incurred. These expenditures and obligations incurred, including, but not limited to, fees and costs, shall constitute a debt owed to the personal representative that is charged against and which may be secured by a lien on the protected homestead, as provided in this section.

In order to be entitled to a lien, the personal representative must take possession of the property (which cannot be occupied by an interested person), and the funds expended must be incurred for the purpose of preserving, maintaining, insuring, or protecting the homestead property.

Under Florida law, the personal representative is required to file a Notice of Taking Possession of Protected Homestead pursuant to Florida Probate Rule 5.404.  The notice is required to contain:

1. A legal description of the property;
2. a statement of the limited purpose for preserving, insuring, and protecting it for the heirs or devisees pending a determination of the homestead status;
3. the name and address of the personal representative and the personal representative’s attorney;
4. if the personal representative is in possession when the notice is filed, the date the personal representative took possession.

In Herrilka v. Yates, a probate court’s order awarding a lien on the protected homestead was reversed.  The order was reversed because the decedent’s alleged spouse lived in the house at all times, meaning the curator never took possession of the property, and because the fees requested were related to the estate administration, not for the preservation of the homestead property.

In order to determine the amount of the debt secured by the lien, the personal representative is required to file a petition and must serve formal notice on the persons appearing to have an interest in the property.

Both the personal representative and the attorney for the personal representative have the option of petitioning for fees for extraordinary services.  “Dealing with protected homestead” can be considered an extraordinary service of the personal representative.  Section 733.617, Fla. Stat. (compensation of personal representative).  The attorney for the personal representative may petition for additional compensation for “legal advice regarding homestead status of real property or proceedings involving that status and services related to protected homestead.” Section 733.6171 (compensation of attorney for the personal representative).

In order to receive fees from the estate for extraordinary services, a petition must be filed.  These extraordinary fees would be in addition to fees for ordinary services in the estate.

There is one situation where the homestead property can lose its homestead protection after the death of the owner.  As held by the Florida Supreme Court:

“It is only when the testator specifies in the will that the homestead is to be sold and the proceeds are to be divided that the homestead loses its “protected” status.”

McKean v. Warburton, 919 So. 2d 341, 346-347 (Fla. 2005).

Yes, the homestead rights and protections can be waived. However, since homestead is a constitutionally protected right, any waiver must be made “knowingly, voluntarily, and intelligently” and waivers of the homestead protections cannot be made in an unsecured agreement.  Chames v. DeMayo, 972 So. 2d 850, 861 (Fla. 2007).

Therefore, a purported waiver of homestead rights contained in an unsecured agreement is not enforceable under Florida law.

No Waiver – Chames v. DeMayo

Chames v. DeMayo involved a creditor (an attorney) seeking fees by placing a lien on the homestead property.  The Florida Supreme Court had to determine whether a “waiver” of the homestead exemption can occur in a retainer agreement.  The answer was no, and the waiver of homestead protections found in the retainer agreement was not a valid way to award a lien for attorney’s fees on the client’s homestead.  The Court stated:

Requiring that a waiver of the homestead exemption be made in the context of a mortgage assures that the waiver is made knowingly, intelligently, and voluntarily. In obtaining a mortgage, a homeowner is well aware that if the payments are not made, the home may be foreclosed upon. As we noted in Carter, “the very nature of the transaction implies the exercise of discretion and the contemplation of inevitable consequences.” Carter, 20 Fla. at 570. A mortgage assures that the waiver of the homestead exemption, like the waiver of other rights, is made with eyes wide open–not inadvertently, deep in the entrails of a retainer agreement. Those who truly wish to waive their homestead exemption–including DeMayo–can do so.

Chames v. DeMayo, 972 So. 2d 850, 861-862, 2007 Fla. LEXIS 2393, *33, 32 Fla. L. Weekly S 820

Waiver – Stone v. Stone

In a 2014 case from Florida’s Fourth District Court of Appeals, the appellate court ruled that boilerplate language in a deed operated as a waiver of the spouse’s homestead rights.  Stone_v._Stone, 157 So. 3d 295, (Fla. 4th DCA 2014).

In Stone, the husband and wife married.  After the marriage, they executed a deed conveying their homestead property to themselves, as tenants in common.  The husband then conveyed his one-half tenant in common interest to a qualified personal residence trust (QPRT). The wife joined in the deed (which is required to covey homestead property in Florida).

The husband did not survive the term of the QPRT, which causes the property to revert back to the husband’s estate.  The husband’s estate planning documents put the husband’s share of the homestead property into trust for the benefit of the wife.  At her death, the property would go to their daughter.  Their son was excluded as a beneficiary of the husband’s estate  plan.  The wife then died.  The son claimed rights in the property, as homestead, contending that the planning that had taken place was not effective to deprive him of his remainder interest homestead rights.

The Court held that there were two transfers that took place.  The first was the husband’s transfer of his interest to the QPRT, and the second was the subsequent transfer of the interest to the daughter after the wife’s death.

The first transfer of the property to the QPRT was not an impermissible “devise” of the property because it was an inter vivos transfer because the settlor did not retain a power to revest himself with the property, pursuant to Section 732.4017(1).

The second transfer entailed the reversion of the property to the husband’s estate (because he did not survive the term of the QPRT), and then passed to the daughter under the terms of the husband’s will.  The court held that this second transfer was a devise, i.e., a testamentary disposition, which cannot be used to circumvent the restrictions on the devise of homestead property when there is a spouse.

The Florida Constitution states that homestead property cannot be devised if the owner is survived by a spouse, unless the devise is to the spouse.  The devise to the daughter would therefore be ineffective unless the wife waived her homestead rights, which the Court held that she did.

The Court held that the wife waived her homestead rights by executing the deed splitting the property into two one-half tenancy in common interests.

Alma waived her homestead rights by executing the March 27, 2000 warranty deed splitting the property into two one-half tenancy in common interests and then transferring her interest into her QPRT. Section 732.702, Florida Statutes, provides in part, that “[t]he rights of a surviving spouse to . . . homestead . . . may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses.” § 732.702(1), Fla. Stat. (2011). Further, “[u]nless the waiver provides to the contrary, a waiver of ‘all rights,’ or equivalent language” may constitute a waiver of all homestead rights that would otherwise pass to the waiving spouse by intestate succession. Id.  The deed Alma executed on March 27, 2000, provided that she “grants, bargains, sells, aliens, remises, releases, conveys, and confirms” the property “together with all the tenements, hereditaments, and appurtenances thereto belonging or in anywise appertaining.” We agree with the trial court that this constituted a waiver of any constitutional homestead rights Alma had in Jerome’s one-half interest in the property.

Because the wife had waived her interest in the homestead property, the husband was free to devise the property as he saw fit.

What is interesting about the opinion is that the Court allowed the very important homestead rights that married spouses have in Florida to be waived via the operation of common boilerplate language found in almost every warranty deed executed in the State of Florida.

Yes, homestead can be partitioned.  In Tullis v. Tullis, 360 So. 2d 375 (Fla. 1978), the Supreme Court held that these “constitutional provisions allow the partition and forced sale of homestead property upon suit by one of the owners of that property.”

Moreover, where property is indivisible, a unilateral act of one party taking possession and claiming the homestead exemption on the property does not affect the substantial rights of the other owners of the property.  See Wescott v. Wescott, 487 So. 2d 1099, 1101 (Fla. 5th DCA 1986) (relying on Tullis, 360 So. 2d. at 377-78).

In Wescott, the Court noted that:

“[h]omestead interests should be protected from forced sale wherever possible, but not at the expense of others owning interests in the property.” Wescott, 487 So. 2d at 1101. There, exclusive possession of the home was given to the former-husband following the dissolution of the co-owners’ marriage.  A contingency was placed on this right to exclusive possession, it would only last until their children reached majority.  After the youngest child reached age 18, the former-husband moved out into another residence and sought partition.  The former-wife moved in and claimed the home as her homestead.  Id. at 1099.

The Court cited Tullis to state that:

[t]he purpose of the homestead exemption provision in our state constitution is to protect the family home from forced sale for the debts of the owner and head of the family. However, this court has never held that the homestead provision precludes a common owner of property from suing for partition and obtaining a forced sale in order to obtain the beneficial enjoyment of her interest in the property.

This understanding is important not just in divorce situations but in inheritance disputes as well.  Under Florida law, when homestead property is not validly devised, it passes to the decedent’s heirs.  Fla. Stat. § 732.401.  Moreover, unlike probate assets, which are not distributed immediately upon death, the benefits of homestead property vest at death.  Engelke v. Estate of Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006).

Thus, when a decedent dies owning homestead in Florida, any heir can theoretically take possession of the property immediately upon the decedent’s death and make the property his or her own homestead.  Such action can be at odds with the wishes of the decedent’s remaining heirs.  In the absence of a right to partition the property, the aforementioned circumstance would invariably result in a race to take possession of the decedent’s homestead.  The right to partition prevents a situation in which the first heir to move in and claim the real property as their homestead wins.  Importantly, any co-owner(irrespective of his or her proportionate interest) may seek a partition of real property.

Cavanaugh v. Cavanaugh, 542 So. 2d 1345, 1351 (Fla. 1st DCA 1989) (homestead is not an estate asset)

“Neither executors nor administrators have at any time in this State had any jurisdiction over the homestead of a deceased person.  The homestead is in no wise an asset of the estate of a decedent.”

Chames v. DeMayo, 972 So. 2d 850, 861 (Fla. 2007) (waivers of homestead protections must be knowing, intelligent, and voluntary)

“We continue to hold that a waiver of the homestead exemption in an unsecured agreement is unenforceable.”

 Clifton v. Clifton, 553 So. 2d 192 (Fla. 5th DCA 1989) (personal representatives have no jurisdiction over homestead) (no homestead order is required to pass title to homestead)

“Homestead property, whether devised or not, passes outside of the probate estate. Personal representatives have no jurisdiction over nor title to homestead, and it is not an asset of the testatory estate.”

“The fact that the probate court failed to enter a formal order of distribution concerning the homestead in the Clifton probate is significant. No such order is required to pass title to persons entitled to homestead property, nor is a personal representative’s deed required.”

Cutler v. Cutler, 994 So. 2d 341, 345 (Fla. 3d DCA 2008) (homestead protections inure at death) (when testator directs sale of homestead and distribution of proceeds, homestead protections lost)

“[T]he benefits of homestead protections vest in a qualified beneficiary at the moment of a testator’s death…”

“It has long been recognized that the owner of homestead property may devise that property in a manner that terminates the protections accorded by article X, section 4. In Estate of Price v. West Florida Hospital., Inc., 513 So. 2d 767, 767 (Fla. 1st DCA 1987), the court confirmed that where a testator directs the sale of homestead property and distribution of the proceeds, the proceeds lose their homestead character and become part of the estate subject to administrative costs and creditors’ claims.”

Estate of Shefner v. Shefner-Holden, 2 So. 3d 1076 (Fla. 3d DCA 2009) (homestead is not a part of the probate estate)

“[W]hen devised to a qualified heir, decedent’s homestead property is not distributed as part of the decedent’s estate, and passes directly to the designated heir.”

Havoco of Am. v. Hill, 790 So. 2d 1018 (Fla. 2001) (purchase of homestead to evade creditors is generally permitted)

“The transfer of nonexempt assets into an exempt homestead with the intent to hinder, delay, or defraud creditors is not one of the three exceptions to the homestead exemption provided in article X, section 4. Nor can we reasonably extend our equitable lien jurisprudence to except such conduct from the exemption’s protection.”

McKean v. Warburton, 919 So. 2d 341 (Fla. 2005) (if homestead not specifically devised it goes to the residuary devisees) (only when the testator specifies in the will that the homestead is to be sold and proceeds divided does homestead lose protected status)

“[W]here a decedent is not survived by a spouse or minor children, the decedent’s homestead property passes to the residuary devisees, not the general devisees, unless there is a specific testamentary disposition ordering the property to be sold and the proceeds made a part of the general estate.”

“It is only when the testator specifies in the will that the homestead is to be sold and the proceeds are to be divided that the homestead loses its “protected” status.”

Monks v. Smith, 609 So.2d 740 (Fla. 1st DCA 1992) (Equitable principles cannot be used to deny homestead status)

“However, “the homestead protection has never been based upon principles of equity.” Public Health Trust of Dade County v. Lopez, 531 So. 2d 946, 951 (Fla. 1988). The surcharge proceeding against Monks may have been entirely appropriate, and certainly Monks will be personally liable for the judgment against her. But that in itself is an entirely separate issue from the legal question of homestead, to which the equitable defense of unclean hands has never applied.”

Snyder v. Davis, 699 So. 2d 999 (Fla. 1997) (homestead provisions construed liberally) (anyone in the class of intestate heirs who inherits homestead receives protections)

“We have consistently made it clear that the homestead provision must be given a broad and liberal construction. In the context of this case, we reject the narrow entitlement definition of the term “heirs” that includes only those people who would inherit under the intestacy statute at the death of the decedent. Instead, we hold that the homestead provision allows a testator with no surviving spouse or minor children to choose to devise, in a will, the homestead property, with its accompanying protection from creditors, to any family member within the class of persons categorized in our intestacy statute.”

Stone_v._Stone, 157 So. 3d 295 (Fla. 4th DCA 2014) (boilerplate language in deed can operate as waiver of homestead rights)

“The deed Alma executed on March 27, 2000, provided that she “grants, bargains, sells, aliens, remises, releases, conveys, and confirms” the property “together with all the tenements, hereditaments, and appurtenances thereto belonging or in anywise appertaining.” We agree with the trial court that this constituted a waiver of any constitutional homestead rights Alma had in Jerome’s one-half interest in the property.”

Tullis v. Tullis, 360 So. 2d 375 (Fla. 1978) (homestead property can be partitioned)

“We hold, with the First District, that our constitutional provisions allow the partition and forced sale of homestead property upon suit by one of the owners of that property, if such partition and forced sale is necessary to protect the beneficial enjoyment of the owners in common to the extent of their interests in the property.”

White v. Theodore Parker, P.A. (in Re Estate of Hamel), 821 So. 2d 1276 (Fla. 2d DCA 2002) (homestead protections vest at death and protection from creditors’ claims inures to heirs)

“Generally,  property rights passing by virtue of the death of a person vest at the time of death. See § 732.101(2), Fla. Stat. (2000) (involving intestate estates); § 732.514, Fla. Stat. (2000) (involving devises); Rice v. Greenberg (In re Estate of Rice), 406 So. 2d 469, 473 (Fla. 3d DCA 1981) (involving remainder interests); Estate of Broome, 375 So. 2d 594 (Fla. 5th DCA 1979) (involving dower). The same has been held true for home stead. See Wilson v. Fla. Nat’l Bank & Trust Co., 64 So. 2d 309, 313 (Fla. 1953) (holding that appropriate time to determine homestead status is at death of the decedent, regardless of whether property thereafter continues to be homestead).  If the property is homestead on the date of death, the homestead protection is impressed upon the land and the protection from creditors’ claims inures to the benefit of the heirs to whom the property is devised.”

“[H]eirs’ homestead rights attached prior to the transfer and that the proceeds of that sale are protected from the claims of the decedent’s creditors.”

Wilson v. Fla. Nat’l Bank & Trust Co., 64 So. 2d 309, 313 (Fla. 1953) (appropriate time to determine homestead status is at death of decedent, regardless of whether property thereafter continues to be homestead).

• A creditor claim in Florida probate is a claim filed by a person or entity (a “creditor”) that the decedent owed money to at the time decedent died.  A creditor must file a timely statement of claim in the probate estate in order to pursue satisfaction of their creditor claim.

  Unless creditors’ claims are barred, every personal representative is required to cause notice to creditors to be published and served.  Section 733.701, Fla. Stat.

• 30 days after the date of service of the notice to creditors on the creditor
• 3 months after the first publication of the notice to creditors
• 2 years from date of death for known or reasonably ascertainable creditors who did not receive notice to creditors

These deadlines can be broken down into deadlines applicable to known or reasonably ascertainable creditors and unknown creditors.

If you are a known or reasonably ascertainable creditor then you are entitled to direct notice of a Florida probate proceeding.  The Florida Supreme Court, in Jones v. Golden, resolved any confusion over when a creditor claim needs to be filed for a known or reasonably ascertainable creditor:

Creditors who are known or reasonably ascertainable need not rely on publication for notice of the pending administration of an estate. Section 733.2121(3)(a) requires a personal representative to “promptly serve a copy of the notice” on those creditors who are known or reasonably ascertainable after a diligent search. The limitations period applicable to known or reasonably ascertainable creditors does not begin to run until service is perfected. Once served with a copy of the notice, a known or reasonably ascertainable creditor must file any claim within the later of “3 months after the time of the first publication of the notice to creditors or . . . 30 days after the date of service on the creditor . . . .” § 733.702(1), Fla. Stat.

 

Under the plain language of section 733.702(1), where a known or reasonably ascertainable creditor is never served with a copy of the notice to creditors, the applicable limitations period never begins to run and cannot bar that creditor’s claim. “[A]s to any creditor required to be served with a copy of the notice to creditors,” the [**15]  limitations period can only be triggered by “service on the creditor” of the required notice. § 733.702(1), Fla. Stat. A known or reasonably ascertainable creditor is absolved from the limitations of section 733.702(1) by virtue of the fact that the personal representative failed to serve the creditor with the required notice. The  [*248]  only instance in which a known or reasonably ascertainable creditor is required to file any claims before the expiration of the three-month window after publication of the notice is where the last day of the three-month window occurs more than thirty days after service of the required notice.

 

Accordingly, if a known or reasonably ascertainable creditor is not served with a copy of the notice, section 733.702(1) does not govern the timeliness of that creditor’s claims. Instead, the claims of such a creditor are only barred if not filed within the two-year period of repose set forth in section 733.710. Thus, the claim of a known or reasonably ascertainable creditor who was never served with a copy of the notice to creditors is timely if filed within two years of the decedent’s death. Further, because the limitations periods in section 733.702 are inapplicable under such circumstances, it is not necessary for the creditor to seek an extension of time [**16]  under section 733.702(3) since that section applies only to claims that are untimely under section 733.702.

If you are not a known or reasonably ascertainable creditor, then you get notice by publication in a local newspaper.

The limitations period applicable to unknown creditors, set forth in section 733.702(1), begins to run upon publication of the notice to creditors and ends three months after the date of the first publication.

Creditor claims and divorce often intersect, and an ex-spouse and a surviving spouse may have to file a creditor claim to enforce their rights.

A premarital or postnuptial agreement can be enforced after a prior spouse’s death, but the prior spouse must file a creditor claim to enforce this contract right.  See Spohr v. Berryman, 589 So. 2d 225 (Fla. 1991).

In Passamondi v. Passamondi, (2nd DCA 2014), Mr. and Mrs. Passamondi filed for divorce.  Mr. Passamondi requested that the divorce proceedings be bifurcated, because Mr. Passamondi was suffering from a terminal illness and presumably wanted a final judgment of divorce entered sooner rather than later, even if it meant other issues such as distribution of property would determined after entry of the judgment of divorce.

A final judgment of divorce was entered on May 24, 2006.  The final judgment “reserved jurisdiction over this cause and each of the parties to enter such further Orders, Judgments, and Decrees as may be necessary at any time in the future to resolve all equitable distribution issues and any other issues which have been pled.”

Mr. Passamondi died in July 2006.  The former wife filed a creditor claim in Mr. Passomondi’s Florida probate estate.  The basis for the former wife’s claim was an “undetermined marital interest in all of the real, personal and intangible property of decedent preceding his death as so determined in” the pending dissolution of marriage proceeding.

The former wife also filed a supplemental petition for relief in the dissolution of marriage proceeding against Mr. Passamondi’s estate and his three children.

Four years passed.  A final hearing was set in the dissolution proceeding for October 2011.  In the meantime, the probate proceedings were terminated in May 2011.

When the parties appeared for final hearing in the dissolution proceeding, the court declined to hear and determine the remaining issues, ruling that Mr. Passamondi’s death and opening of Mr. Passamondi’s estate vested the probate court with “exclusive jurisdiction to determine the proper manner of distribution of the Former Husband’s assets after payment of all creditors of the Estate of which the Former Wife was one…”  The trial court dismissed the former’s wife’s claims.

The Florida appellate court reversed the ruling of the trial court, stating:

If a trial court bifurcates a proceeding for dissolution of marriage by entering a judgment dissolving the marriage but retaining jurisdiction to determine property issues, the subsequent death of a party does not deprive the trial court of jurisdiction to determine the issues reserved.

Although filing a creditor claim was ultimately not necessary in this case, it is prudent to file a creditor claim to make sure your client’s rights are protected.

A surviving spouse who has community property rights must file a claim in the deceased spouse’s estate to enforce community property rights.  We have written about this requirement under Florida law here.

A child support arrearage can be pursued with a creditor claim in Florida probate by the parent owed the support, or by an emancipated child if the parent is unable or unwilling to pursue.

In Davis v. Hengan, a father died owing child support arrearages.  The father died intestate, and was survived by his daughter, his daughter’s mother, and his current wife.  The daughter and current wife were appointed co-personal representatives of the father’s Florida estate.

The mother, as a creditor of the father’s estate, filed a statement of claim in the father’s Florida estate for child support arrearages.  An objection was made to the mother’s claim, and the mother filed an independent action against the co-personal representatives of the estate for the child support arrearages.

The daughter (a co-personal representative), also filed a statement of claim against the estate for child support arrearages.  The current wife (the other co-personal representative) objected to the daughter’s claim.  Like the mother, the daughter filed an independent action on her claim, and then moved to consolidate her independent action with her mother’s independent action.

The father’s current wife, as co-personal representative, moved to dismiss the daughter’s independent action.  The current wife argued that the daughter lacked standing to pursue child support arrearages because the right to pursue the arrearages vested solely in the daughter’s mother.  The Florida trial court granted the current wife’s motion to dismiss.  The daughter appealed.

In a short opinion, the Florida appellate court affirmed the dismissal of the daughter’s independent action, stating:

Parents have a legal duty to support their children.” Dep’t of Revenue v. Jackson, 846 So. 2d 486, 492 (Fla. 2003); see § 61.09, Fla. Stat. (2015). “An obligation to pay accrued support is not extinguished even when the child reaches majority, notwithstanding that the parent’s obligation to support normally ends when a child reaches eighteen.” Kranz, 661 So. 2d at 878 (citation omitted). We have held that a child has standing to enforce rights that ripen after the child reaches the age of majority. Brown v. Brown, 484 So. 2d 1282 (Fla. 4th DCA 1986). But we have never held, nor has any other court held, that the rights that accrue during the age of minority can be enforced by anyone other than the child’s legal representative.

The Florida appellate court noted that the opinion should not be read to prevent a child who has been emancipated from pursuing child support arrearages if the parent is unable or unwilling to pursue the arrearages.

es, and it will relate back.

In the case of Richard v Richard, (3rd DCA 2016), the court was faced with the issue of a potentially late-filed creditor claim in the Florida probate.  The notice to creditors was published one day prior to the order appointing the two personal representatives.  The trial court held that the notice to creditors was not validly published, which had the effect of making the creditor claim not late (because the three month claim period, otherwise triggered by the publication of the notice to creditors, had not yet started to run).

In reversing, the appellate court relied on the “relation back” doctrine, as well as specific statutory authority to ratify acts taken prior to the appointment of a personal representative.

As explained by the court:

The roots of the “relation back” doctrine run deep in Florida law. In 1954, the Florida Supreme Court referred to it as an “ancient doctrine” when considering whether or not a trial court erred in dismissing a wrongful death claim brought by a father on behalf of his deceased son’s estate prior to his appointment as personal representative of the estate. Griffin v. Workman, 73 So. 2d 844, 846 (Fla. 1954). The Court further noted the doctrine, which provides that “whenever letters of administration or testamentary are granted they relate back to the intestate’s or testator’s death,” had “been accepted with virtual unanimity, since it was promulgated, in a long line of cases” throughout the country.

The court also looked to a Florida Statute, which provides as follows (Section 733.601):

The duties and powers of a personal representative commence upon appointment. The powers of a personal representative relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment. A personal representative may ratify and accept acts on behalf of the estate done by others when the acts would have been proper for a personal representative.

In summarizing its holding, the court explained:

We hold that the relation back doctrine, codified in section 733.601, applies to the personal representative’s act of publishing the notice to the creditors, and that the order appointing personal representative relates back and validates the pre-appointment act of publication of the notice to creditors.

Creditor claim deadlines in Florida probate can be quick, and a trap for the unwary.  Figure out if you need to file a creditor claim, and file your claim as soon as possible.

Just because a creditor claim has been filed does not mean that the claim is automatically deemed valid and paid.  Creditor claims can be objected to.

The personal representative of the estate or other interested person may file an objection to a creditor claim.

An “interested person” is defined in section 731.201(23) as any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.  In the context of a creditor claim, this would include the beneficiaries and other creditors.

The deadline to file an objection to a creditor claim is the later of:

• On or before the expiration of 4 months from the first publication of notice to creditors or;
• Within 30 days from the timely filing or amendment of a claim.

Once an objection to a creditor is filed, the claimant (the person who filed the creditor claim) has two options.

If the claimant wants to pursue their creditor claim, the claimant must file an independent action.  Pursuant to section 733.705, a claimant has 30 days from the service of the objection to the claim to file the independent action.  The independent action is a separate lawsuit, and cannot be filed in the probate estate.

• The other option for the claimant is to let go of the creditor claim.  If 30 days passes without the filing of an independent action, then the creditor claim will not be paid, and will effectively be abandoned.

• Give Required Notices to Beneficiaries, Surviving Spouses, and Creditors. Florida law requires that a Notice of Administration be provided to beneficiaries named in the will, as well as surviving spouses. The Notice of Administration provides important information, such as the deadline for challenging the validity of a will, and alerts the spouse that he or she must claim certain spousal entitlements, such as elective share and family allowance. Known creditors must be given a Notice to Creditors, stating that the creditor has 90 days within which to file a creditor claim in the estate. Notice to Creditors must also be published in the local newspaper, alerting such creditors of the deadline for filing creditor claims.
• Marshall Assets, Preserve and Protect. Once the estate has been opened and letters of administration issued to the personal representative, the personal representative should take custody of the assets of the deceased that are properly part of the probate estate. For bank accounts, brokerage accounts, annuities, and insurance payable to the probate estate, the personal representative should retitle such accounts into the name of the estate and/or move such accounts into new accounts in the name of he estate. Normally, positions in stocks would be turned into cash (or reduced) so as to avoid any losses on estate assets. Real estate would be insured, secured, and listed for sale (or distributed to the beneficiaries). Homestead property of the deceased is not normally considered an estate asset so is handled differently. During this process, normally at the beginning, an estate inventory is filed with the probate court and sent to all of the beneficiaries.
• Creditors, Taxes, Disputes and Other Messy Stuff. These are the things that cause estate to be tied up for years and consume large amounts of money. Creditor lawsuits can go on for years. If the estate is subject to the estate tax, it will require a minimum of two years to close the estate, usually longer. If someone challenges the validity of the will, that process could take years as well and be very expensive. If the estate must deal with real estate, business interests, patents, art, or a wrongful death claim, such could tie up the estate for years. Some estates have all of these issues and more. If the estate has none of these issues, the estate should be able to be closed in under one year, sometimes even faster.
• Distribution to the Beneficiaries. The personal representative makes distribution to the beneficiaries after all of the difficult and messy issues are resolved. The personal representative might make interim distributions during the administration of the estate, or might wait and only make final distribution to the beneficiaries. For the final distribution, the personal representative can issue a plan of distribution and final accounting to the beneficiaries, to which they can object. In estates with good harmony, the personal representative might only issue an informal accounting and informal plan of distribution, to which they could agree with by signing a waiver or similar document.
• Discharge and Accounting. The personal representative, at the conclusion of the estate administration, will file a final accounting, plan of distribution, and petition for discharge with the probate court. If the accounting and plan of distribution was waived by the beneficiaries, those documents would not be filed. The clerk’s office at the probate court will review the petition for discharge to ensure that all requirements of a proper probate administration have been complied with, such as filing the inventory, paying (or successfully disputing)all creditor claims, and filing either the final accounting and plan of distribution (or waivers signed by the beneficiaries for such documents).

The Florida Probate Code provides that the surviving spouse, or if there is no surviving spouse, the children, may have a right to receive a share of the estate free from creditors.  This share is known as exempt property under the Florida Probate Code.  The exempt property statute is Section 732.402.

If the decedent was a resident of Florida, certain family members may receive the exempt property.  If the decedent was married at the time of death, the surviving spouse can receive the exempt property.  If not married, the children of the decedent can receive the exempt property.

• Household furnishings at the usual place of abode, valued at no more than $20,000
• Two motor vehicles held in the decedent’s name and regularly used by the decedent and or members of the immediate family.  Each vehicle cannot weight more than 15,000 pounds.
• Qualified tuition programs under Section 529 of the Internal Revenue Code
• Certain types of educator death benefits

If the exempt property is bequeathed in a will to someone who would not be entitled to exempt property, the property goes to that person as non-exempt property.  Otherwise, the property is exempt.

A petition for the determination of exempt property must be filed by the later of (i) 4 months after the date of service of the notice of administration, or (ii) 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of a will or involving any other matter affecting any part of the estate subject to exempt property.  In case of doubt as to when to file, a protective exempt property election should be filed.

• Exempt from the claims of creditors
• Excluded from the value of the estate before residuary, intestate, or pretermitted or elective shares are determined.