Florida Probate Question of the Day:

My mom, thankfully still alive at age 85, has informed my sister and I that under the terms of her will, we split everything 50-50. There are no other heirs. Mom’s greatest asset is her house, which she owns free and clear (no mortgage). If my sister and I won’t consent to sell it, can I sell my interest in it?

Allow me to make a few assumptions before responding:

1.  The Will either specifically devises the homestead to you and your sister; OR

2.  The Will makes no specific reference to the homestead but has a “residuary” clause which generally leaves all property to you and your sister; AND

3.  The Will does not specifically instruct the Personal Representative to sell the homestead and distribute the proceeds.

(If the Will does specifically instruct the Personal Representative to sell the homestead and split the proceeds, then your question is moot.)

Otherwise, without the consent of all heirs, there is no specific mechanism in Florida probate law to simply sell an heir’s fractional interest in homestead property.

Homestead Property and the Probate Process

You may hear from time to time that a Homestead is a non-probate asset.  While this is legally accurate, if there is no surviving spouse, transfer of the homestead property will require an order from a probate court.

1. You and your sister will need to probate your mother’s Will to transfer title to the property after her death (unless she transfers the property during her lifetime.)

2. Once you and your sister receive title from the probate court (likely via a “Hometead Determination Order”), it is no longer the probate court’s concern. In other words, what you and your sister decide to do with the property is completely up to you two.

3. If you want to sell and she does not want to buy you out, the only option would be to pursue a “partition” action wherein a judge will eventually force you two to sell the property and split the proceeds.

Tenants in common hold an “undivided” interest in the property.

Typically, when you inherit property with other heirs, you own the property as “tenants in common”.

This means each tenant has full access to the property even then only own a percentage. It is difficult for each tenant in common to sell to a 3rd party – buyers usually shy away. So again, a partition action is probably your only recourse if your sister won’t buy you out and otherwise refuses to sell.

Closing Points

The short answer is yes (with exceptions!)  All heirs will likely need to consent in order to sell the homestead property.  Note that the assumptions upon which I have based this response are born from the overwhelming number of “form” Wills and “online” Wills that I’ve seen (yet another reason to consider having an attorney custom prepare your Will!)  Remember, one size does not fit all.

Florida Probate Question of the Day

I recently talked to a prosepective client about homestead laws in Florida.  Specifically:

What happens to a decedent’s homestead in a Florida probate administration that has many or substantial creditors?

I told him that I could secure a Homestead Protection Order so that his mother’s house would pass safely without worrying about the claims of creditors.

Recently, he contacted me for clarification:

I want to make sure I understand that (homestead) classification correctly. I currently do not reside (nor plan to) in my mother’s house, and I was concerned that a legal minor must be residing post-death in order to remain a homestead exemption.  Can you clarify that distinction for me when you get a chance?

Answer:

Constitutional homestead protection is granted to the decedent’s estate and accordingly the heirs of the estate.

If your mother was on the title to the house and it was her principal residence at death, it (the house) enjoys that protection and can be passed on to you and the other heirs free and clear of debt other than debt secured by the house (mortgages, mechanic’s liens etc.) In other words, pay the mortgage or lose the house.

Note also that if you chose to sell the homestead property, the funds received from the sale are also protected!

Credit card debt or medical debt on the other hand, has no effect on the homestead.

The only other caveat would be a Federal IRS lien or liability.  (The IRS can take just about anything)

The fact that you do not intend to move there has no bearing on your right to claim a homestead protection order.

Regarding minors:  Florida Homestead laws forbid a person to dispose of their home to a third party by Last Will and Testament (or any other testamentary document), if that person had minor children at death.