The Florida Constitution contains protections for the surviving family members of a decedent who owned real property in the decedent’s name alone. If the will, or the law for estates without wills, results in a family member inheriting the decedent’s primary residence, the home passes to the beneficiary without being subject to the decedent’s creditor claims.
Since the ownership passes at the moment of death, and therefore, the beneficiaries are the owners immediately, the Florida personal representative should not use estate assets to pay for the maintenance of the home. If expenses such as insurance, mortgage payments and utilities are paid, arrangements should be made by the person or persons inheriting the home to pay these from their own funds.
When the decedent is only survived by his adult children, then to remove the homestead property from the probate proceeding, the personal representative must file the Petition to Determine Homestead Status of Real Property. When the Court enters an Order Determining Homestead Status of Real Property the property to be a protected homestead no longer becomes a concern of the probate court and is then protected from unsecured creditors. The Order Determining Homestead usually cannot be obtained until after the three month creditor claim period expires and confirms that the property was in fact the decedent’s Homestead as defined under the probate laws.