Florida Homestead Property in Trust

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15th Oct 2017

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By: Wyon F. Wiegratz

Homestead status in Florida has three attributes.  One is its exemptions and lower assessment for real estate tax purposes.  Two is protection from creditor’s claims.  Three is its status that allows a surviving spouse and children to automatically take title to the property after the owners death.  Holding property in trust does not necessarily avoid the spouse’s or children’s right to claim the homestead and in effect trump the provisions of and will or trust.  Almost all title agents in Florida insist that if homestead is being held in trust, the surviving spouse, and if no surviving spouse the children, consent to any transfer of the property since they are first entitled to take the property under Florida’s homestead law.  This can only be avoided by the spouse having previously surrendered the homestead right to immediately inherit the property. This all turns on what is the purpose of the trust that you have established.  If at death it becomes an irrevocable trust so as to pass property on to children or other relatives this could present a problem since the surviving spouse always has the first right to take homestead property outright unless that right is waived.  Another way to avoid the automatic homestead rights of a surviving spouse or children is to provide in the will or the trust that the homestead is to be sold after death if the spouse is not to take ownership.

Therefore care must be taken if a home in Florida is going to be transferred to a trust and you should seek the help of an attorney licensed to practice in FL

Disclaimer: If you need or desire legal advice, you should consult an attorney for advice specific to your situation. Further, laws change over time so the information should be verified before relying on it. The above content is intended to provide general information regarding the subject matter covered. The provision of this information is not intended by the author as legal advice.

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