Neilson Law PA

Homestead is one of the greatest benefits of being a Florida resident.  Article X, Section 4 of the Florida Constitution affords three benefits of homestead status:

1. Exemption from taxes

2. Protection from forced sale or attachment by creditors

3. Restriction on alienation and devise.

Homestead status is established when a natural person intends to make and actually maintains the real estate as the principal residence.  A homestead is “abandoned” by taking up permanent residence at a distant place.  The issue is what constitutes abandonment in between these two extremes.

Not Abandonment:

One year absence from property to cope with divorce.

Temporary absence and renting the homestead if no other property is owned.

Husband and wife living in a farm house in a different county than homestead during harvest season.

Abandonment:

Owner is absent, allows driver’s license to expire, obtains license and registers to vote in another county.

Bottom Line:  contact your attorney before leaving home!

Jennifer Neilson

NEILSON LAW, PA

Yes, but the better question is… could a disgruntled child win a will contest.

Any interested person may object to the validity of a will, however the burden shifts to the contestant if the will has a self-proving affidavit in accordance with Florida law.

Bottom line: Retain a Florida estate planning attorney to draft your will to assure your wishes are followed and the protect the document from frivolous attacks.

Unfortunately, probate.

There are various procedures to transfer a decedent’s Florida real estate to the surviving spouse, beneficiaries of domicile estate depending on: (1) the value of the real estate, (2) the amount of time since death, and (3) if domiciliary proceedings have occurred.  Florida law provides simplified probate in several incidences of ancillary administration.

If the decedent died with a will and less than $50,000.00 in Florida assets, the foreign Personal Representative (appointed in the state of domicile) may petition the Florida court to admit the foreign will to probate in Florida with a authenticated transcript of the domicile probate record.  Publication to creditors is optional. F.S. 734.1025

Ancillary summary administration is available for intestate estates (no will) if the Florida assets are less than $75,000.00. Florida Probate Rule 5.470 states:

(a) Petition. The petition for ancillary letters shall include an authenticated copy of so much of the domiciliary proceedings as will show:

Yes.  Florida law presumes that a will has been lost or destroyed if the original is not located, however that presumption may be overcome.  Florida Statutes provide a procedure for probate of a lost or destroyed will.  Section 773.207 states:

“Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.”

Yes! Regardless of whether or not your spouse still resides in the marital home, he or she has claim to a share of the homestead upon your demise.

Example: You have not seen your spouse in years.  You no longer maintain a life together and have not spoken to him or her in years.  You are aware of the debtor friendly Florida homestead laws that protect your homestead from most creditors allowing it to pass free and clear to your descendants and decide to  bequeath your primary residence to your adult children leaving nothing to your spouse.

If you execute a Last Will and Testament devising your homestead to your children alone, your spouse is entitled to claim a life estate in the homestead.  Pursuant to Section 732.401 of Florida Statutes “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”.  F.S. 732.401(1).  Your spouse also has the option of electing to take an undivided one-half interest in the homestead as a tenant in common. F. S. 732.401(2)

The claim is not automatic.  The election must be made within 6 months after the decedent’s death and during the surviving spouse’s lifetime.  F.S. 732.401(2)(b).

Bottom line:  If you want to disinherit your spouse, you require a properly executed ante-nuptial agreement (post-nup).

Three months from service of the Notice of Administration.

A Florida personal representative shall promptly serve a copy of the notice of administration on the following persons who are known to the personal representative:

In a recent Florida case, decedent’s mother filed an objection to the appointment of a foreign Personal Representative alleging that the non-resident, non-family member was not qualified.  The court disallowed the objection as time barred.  In ruling against the mother, the court relied on F.S. 733.212(3)  which bars untimely objections to qualifications of personal representative except where fraud, misrepresentation or misconduct is not apparent on the face of the petition for administration or discovered within the three-month limitation period.  Hill v. Davis, 36 Fla. L. Weekly S487 (Fla. 2011)

NEILSON LAW, P.A.

My blog is now located at www.neilsonlaw.blogspot.com.  Please visit the new site for relevant Florida law including probate, trust administration, wills, trusts, estate planning, power of attorney, will contests, real estate and guardianship.