Fort Lauderdale, FL asked in Real Estate Law and Probate for Florida

Q: Can I keep homestead status (not exemption) on a property that was specifically given to me in a Will if I am a friend?

There was no spouse, no children, and no other heris. It was specifically given to me in a Will. I understand that I don't get homestead exemption from creditors. But, I wanted to know if the status of the homestead stays on the property itself, and if so, does that mean it's protected from PR and attorney fees of the estate? I am not sure if the personal representatives and his attorney fees are considered creditors of the estate. I have been living in the property since probate opened in Dec 2019 as my primary residence. It's been 5 years. There are no other debts and no creditors. I wasn't sure if the property keeps homestead status itself even though I lose exemption.

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2 Lawyer Answers

A: Since you are not an heir in accordance with Florida Statute, Homestead protection will not apply to you, see below:

Fla. Stat. 732.103 includes as “heirs” the following persons: descendants of the decedent, decedent’s father or mother, decedent’s brothers or sisters and their descendants, paternal and maternal kindred of the decedent (this includes grandfathers and grandmothers, uncles and aunts and their descendants), and the kindred of the last deceased spouse of the decedent and his or her kindred.

This means the property is not protected from estate creditors and claims, the property will subject to the attorney fees as well as PR fees.

The real issue is why this matter has been dragging on for 5 years already, that sounds like and feels like a very long time. You hopefully have your own attorney for probate and are not relying on the estate probate attorney and the PR, as they do not represent your interests, they represent the estate and the PR and your interest can diverge at some point or ongoing. You likely need your own attorney for probate to review these matters at this point.

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Answered

A: Great question! Here’s the breakdown:

Homestead Status vs. Exemption

Homestead Status refers to the legal characterization of the property as a homestead, offering certain protections.

Homestead Exemption offers tax benefits and protections from forced sale by creditors.

In Your Situation:

Since you received the property through a Will, and there are no surviving spouse or children, you won't get the homestead tax exemption benefits since you’re not a qualifying heir. However:

1. Homestead Status of the Property:

Yes, the property can retain its homestead status as long as it was the decedent's homestead and is devised to you specifically.

This status protects the property from being sold to satisfy creditor claims against the estate, except for secured creditors like mortgage holders.

2. Personal Representative (PR) and Attorney Fees:

PR and attorney fees are generally considered administrative expenses of the estate—not creditor claims.

However, if the property retains its homestead status, it may not be used to satisfy these expenses.

3. Practical Implications:

Since you’ve been living there since probate opened in December 2019 and have established it as your primary residence, this further solidifies its homestead status.

With no other debts or creditors, the property is likely protected from being sold to pay PR and attorney fees.

Bottom Line:

The homestead status protects the property from forced sale due to creditor claims, but PR and attorney fees may still be payable from other estate assets. However, if there are no other assets and the property retains its homestead status, it should remain protected.

It’s best to consult with a probate attorney to confirm this protection in your specific jurisdiction, as laws can vary.

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