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legalgems
legalgems, Arbitrator
Category: Real Estate Law
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Just spoke with my probate attorney in Floirda. He informed

Customer Question

Just spoke with my probate attorney in Floirda. He informed me that this home is a homestead property and is outside of probate. Apparently Florida low treats homestead properties differently. Does you answer still apply ?
Submitted: 3 months ago.
Category: Real Estate Law
Expert:  legalgems replied 3 months ago.

The homestead exemption takes the property out of probate- please see Art X, section 4 of the constitution. Relevant portion:

(b) These exemptions shall inure to the surviving spouse or heirs of the owner.

(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.

However, that complicates matters even more so, as then the personal rep of the probate estate would not have the ability (legal standing) to transfer the property, because the property would not be part of the probate estate. Rather the heirs would be the legal owners and would be the only parties allowed to transfer the property. The probate court would still need to declare that the property is in fact homesteaded, and then it would pass outside of probate to the heirs (and not be subject to creditors)

Please see:

https://www.floridabar.org/divcom/jn/jnjournal01.nsf/Author/B96B031B0B2A4BE485256BDB004E5F0A

This statute specifically addresses homesteads:

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/Sections/0732.401.html

Customer: replied 3 months ago.
Your answer is not clear. We have a contract on the house. Our attorney states that the homestead is no longer in probate. We still have the issue is the second heir missing and not available to sign the paperwork. Where does that put us homestead or not ?
Expert:  legalgems replied 3 months ago.

If the homestead is no longer in probate, presumably the judge confirmed it was a homestead property - in which case it would then transfer, outside of probate, to the proper heirs. The transfer of the property occurs upon death as a matter of law-so that the heir becomes the equitable owner; so a homestead home can only be sold by the owner (ie the heir), not a third party. Since the property is not in probate, the personal rep has no authority over that property- rather the heir does.

Expert:  legalgems replied 3 months ago.

The attorney should be familiar with the homestead process and how to transfer title to a non-heir; basically the heir needs to be located with a due diligence effort; if they can't be located then one would need to petition the court for the clerk to have authority to sign off on any proposed sale. Did the attorney have a person in mind that they felt was qualified to sign off on the closing? Normally a sale is not initiated until the heirs are located, and the heir then determines if they would like to sell the house.

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