Rancho Cucamonga, CA asked in Estate Planning and Probate for Florida

Q: Hi, I question regarding homestead life estate for Fl. Does her condo have to go through my dad's probate? Thanks!!

My mom passed 2 years ago intestate,my dad was named personal representative but passed before probate was complete. My sister coerced (possible elder abuse) my father to sign a will while he was in ICU under the influence of morphine and other meds leaving everything to her. There are 5 siblings. She gets everything from both estates! I have been told that my mother's condo goes to my Dad's estate. But in reading this,shouldn't her condo go directly to her heirs after my dad passed.Doesn't he just get to live in it until he passed? Am I misunderstanding this?

732.401 Descent of homestead.

(1) If not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes.

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1 Lawyer Answer
Seril L Grossfeld
Seril L Grossfeld
Answered
  • Estate Planning Lawyer
  • Fort Lauderdale, FL

A: Homestead issues are very complicated. Theoretically the homestead does not go into the estate it descends per the statute you indicated, however a court order is necessary to apply this statute, it is not automatic. There would need to be a petition to determine homestead in your mother's estate to make the determination that it was homestead and who it was now titled to. This would not apply if your parents owned the property as joint tenants by the entireties, in which case it passed as a matter of law to your father. Your father's estate would also need a petition to determine homestead if it had passed solely to him.

Obviously you need the assistance of a probate litigation attorney both as to the homestead issues and the question as to whether your used undue influence to secure your father to sign the will. Do not put off consulting with a probate litigation attorney since there are time limits to contest all of this.

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