Springfield, MO asked in Estate Planning, Family Law, Real Estate Law and Probate for Florida

Q: I loaned my mother $43,000 @ 7% interest per annum secured by a promissory note, payable upon her death.

I loaned my mother $43,000 @ 7% interest per annum secured by a promissory note, payable upon her death.

The agreement between us was that her house would be use to pay the bulk of the note. When she died we were advised by the estate attorney that the Florida Homestead law would prevent me from getting money from the home to satisfy the note and the home would be divided 5 ways between the children.

The promissory note states “Each of us, weather maker, surety or endorser, hereby severally waive presentment and demand for payment and notice of non-payment and each of us waive all right of Homestead and exemption under the Constitution and Laws of Florida.”

I was wondering if this statement in the note applies after her death and could be used to allow me to have a claim against the house to satisfy the note?

Thanks for any replies

2 Lawyer Answers
Bruce Alexander Minnick
Bruce Alexander Minnick
Answered
  • Estate Planning Lawyer
  • Tallahassee, FL
  • Licensed in Florida

A: The short answer (and my legal advice) is to follow the correct advice given to you by the attorney probating your mother's estate because the estate attorney will fight you in court over this issue--using your mother's money.

Barry W. Kaufman agrees with this answer

Barry W. Kaufman
Barry W. Kaufman
Answered
  • Jacksonville, FL
  • Licensed in Florida

A: Probably not. An agreement doesn't take precedence over a statute.

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