2) It is not subject to the claims of decedent’s creditors. In Burdick v. Burdick, 399 So. F.S.
What does that mean to the fiduciary? Florida Probate Rule 5.340(a) provides in part: “Real property appearing to be homestead property shall be listed and so designated.” This suggests the reason for the “Homestead Real Property” classification as the first subdivision of The Florida Bar inventory form entitled “REAL ESTATE IN FLORIDA— Homestead.” The committee note to this rule discloses “Constitutional homestead real property is not necessarily a probatable (sic) asset. Although there is no such introductory phrase in F.S. This language suggests: a) that there is constitutional homestead (which is exempt from creditors), and b) “other” homestead, which is not. There are three parts of the Florida Probate Code that may be inconsistent with discussions above. 48, Process and Service of Process, and Ch. When there is no other asset, we may sometimes feel that it is an unnecessary effort to open a formal probate administration, simply to obtain an order determining homestead status.
48 or 49.
Unfortunately, the term, “probate proceeding,” is not defined in the statutes, although it is used in F.S. Editor's Note: Mr. Kelley's first article on homestead explained the basics of the homestead concept and was published in the March 1991 issue of the Bar Journal . It is the “proper notice” aspect that is of special interest here.
§731.201(8), it is provided that “[a] devise is subject to charges for debts, expenses, and taxes as provided in this code or in the will.” The argument may be made directly from the statute that if the property is devised (to a spouse when permitted or, absent a spouse, to persons who would be heirs) that it, by definition, becomes “subject to probate.” This would change answers 2 and 3 in Scenarios 2 and 3 to “yes.” This argument fails in the face of Lopez. The alternative construction is since the case law of the state is clear that under the proper circumstances, the property may be subject to the claims of creditors, the intended meaning of the phrase “except the homestead” is “except the decedent’s homestead not subject to creditors’ claims.” Charles E. Early, a Sarasota lawyer regarded by many (including your writer) as a scholar of the law, has suggested that the two statutes in question be amended to delete the reference to homestead. In Lopez, the opinion (as well as the prior DCA opinion) is silent on the question of whether Mrs. Lopez died testate or intestate.
Ch. §733.607 (Possession of estate) — provides: “Except as otherwise provided by a decedent’s wilt, every personal representative has a right to, and shall take possession or control of, the decedent’s property, except the homestead,.. .
Tae Tanya Kelley is associated with the firm of Ketchney, Horan in Tampa. First, it is traditional, because when probate jurisdiction was in the county judge’s courts, that court determined homestead status in a probate proceeding. If you missed it, you should read that article before reading this one. Many of the forms and applications are available in portable document format (PDF). Does anyone suggest that a provision in the decedent’s will that “I direct my homestead be sold and the proceeds be applied first to the payment of my debts, and any amount then remaining shall then be paid to my son” has no validity? Editor’s Note: Mr. Kelley’s first article on homestead explained the basics of the homestead concept and was published in the March 1991 issue of the Bar Journal .
Rohan Kelley is a shareholder in Rohan Kelley, P.A., in Ft. Lauderdale. He is board certified in estate planning and probate and is past chairman and present member of the Probate and Estate Planning Certification Committee of The Florida Bar.
X, §4(c) where the decedent is survived by a spouse or minor child. See Burns v. Estate of Cobb, 589 So. 48, or by constructive service, perfected by publication and mailing of a notice of action, as described in Ch. In summary, we learned that the “homestead” is the homestead of the decedent, not of the estate. Grossman v. Selewacz, 417 So. What Stores Are Open In Buckland Hills Mall, §733.710.
Part 3a will follow in next month’s July/August issue.
(Even a devise to a spouse?) 2d 708 (Fla. It is appropriate to generally examine the difference between issue 2 and issue 3.
Under that circumstance, is the PR entitled to possession of the property?
It has been the practice of some courts (in the probate division, as applicable) to entertain such stand-alone homestead petitions. Please sign in to share these flashcards. Even assuming, arguendo, that the decedent’s homestead will stand only for the claims of creditors, then in a limited sense, the PR must also be entitled to possession and have the right to sell the property. Only with substantial difficulty. Generally, its presence precludes termination of the trust on request of the beneficiaries because the clause shows that the settlor didn't trust the beneficiary to make financial decisions regarding the trust's assets. This statute (F.S.
§732.4015) or if not devised, under §732.102(1) as the sole intestate heir ( see Kelley’s Paradigm, level 3). Using probate as the host proceeding makes sense for the additional reason that in accordance with the limitations on devise in Fla. Const. If the PR is unable to sell the property to pay claims of creditors (within the proper sequence in which assets are appropriated for purposes of administration), how are the claims to be enforced against the property—by some separate litigation brought by the creditors as a class against the property, in rem, or against those to whom it is devised?
FEBRUARY 2003 AND JULY 2003 FLORIDA BAR EXAMINATIONS ESSAY QUESTIONS AND SELECTED ANSWERS Part I of this publication contains he essay questions from thet February 2003 and July 2003 Florida Bar Examinations and one selected answer for each question. Constitutional Law Study Guide Pdf, The next case cited by those who feel that the decedent’s homestead, in those circumstances, is not subject to probate is the case of Cavanaugh v. Cavanaugh, 542 So. Such a petition would properly be construed as a complaint for declaratory judgment. 526.012 (which interestingly overrides the constitution) describes the jurisdiction of the circuit court in nearly identical language. The format of the following portion of this article is as an opinion letter sent to a corporate fiduciary client which is the personal representative of the estate. X, §4(c), and in the Florida Probate Code, the descent of the property in question must be determined before a determination of the continuing status of the exemption can be made. The real world approach is that the law should be construed to produce a practical and logical result if possible.
. While the court has subject-matter jurisdiction, it probably never acquires personal jurisdiction over all necessary parties and the final order is jurisdictionally flawed. If you conclude that the property is not subject either to the claims of creditors or to probate, then go ahead and do just that. §732.4015; Cavanaugh v. Cavanaugh, 542 So. ~ From the Rules Regulating The Florida Bar. Required fields are marked *, Join the over million users who save money and receive life changing tips, Copyright © LetsTalkBeauty.com.
Probate attorneys are used to dealing with the question, “What interest, if any, does the personal representative have in a particular parcel of real property?” Real estate attorneys approach it differently. © 2020 The Florida Bar.
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