Q: Person dies with a will. Does executor or Florida probate decide Homestead property?
Will names personal rep. Rep was told property gets split among hiers, as if there was no will?
A: When there is more than one beneficiary to a Will, the personal representative is required by law to be represented by an attorney. The PR needs to retain an attorney asap.
Phillip William Gunthert agrees with this answer
A: In Florida, the Executor is referred to as a Personal Representative (PR) and the Florida Court's will require an attorney in most all instances to represent the PR and file probate. The PR does not determine Homestead status of real property, it is a determination made by the court based on a petition and based on applicable circumstances. Florida Statute creates and determines Homestead in Florida and the court/judge approves it and or denies it based on circumstances. Beneficiaries of an estate are not represented by the estate attorney, the estate attorney represents the PR/Estate. Usually, if there is a surviving spouse, they have rights to the Homestead one way or the other, either a 50% interest or a life estate or according to the Will if it gives them more. The PR doesn't decide anything related to Homestead, they are told via the court/law/judge if a property is Homestead or not. While it can be confusing, and it is at times, a probate attorney can clarify any issues as they arise or actions relates to probate that are taken.
A: Florida statute 732.401 controls the descent of the homestead property. It provides, that if the homestead property is not devised in the will as authorized by law and the constitution, then the homestead shall descend in the same manner as other intestate property. Consult with a probate attorney for more information.
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