How to Devise Homestead Property in Florida

If one owns property in Florida as homestead property, the property automatically passes to one’s heirs at death. That sounds great and easy, but the reality is that as an owner of the property, you may not want your property to pass to all of your next of kin, in equal shares. More importantly, if homestead property passes to your heirs automatically at death, when your heirs wish to sell it, they all must agree on every aspect of the sale. Trying to get more than one person to agree on the sale price, the realtor, and on all other aspects of a sale may be extremely challenging.

In addition, if your heirs wish to sell the property, the title company and/or the purchaser will insist on a court determination that the property is indeed homestead property. In that case, while a full probate proceeding will not be required, your heirs will need to file a Petition to Determine Homestead Property, which is not as simple as one would think.

What is the solution to all of this? Transferring homestead property to a revocable trust will avoid probate and will avoid a court proceeding to determine homestead property. Moreover, you, the owner of the property can determine who inherits it. Additionally, you can appoint one or more Trustees to handle the disposition of the property, instead of having all of your next of kin agree to all of the terms of the sale. If you appoint one Trustee, that person makes all the decisions, which will make the process more efficient and less contentious. Of course, a revocable trust is also a good mechanism for dealing with the event of a disability. If the owner of the property transfers the property into the trust controlled by him/her, if the owner becomes disabled the successor Trustee can step in and handle all matters related to the property.

Of course, before taking any action, one should consult with an experienced estate planning attorney.