Florida homestead law protects your primary residence from creditors and ensures it passes to your family. However, if you have a spouse or minor children, you must include your homestead in your will correctly. Florida Statute 732.4015 outlines specific rules for this situation.
Impact on devise
If you have a spouse and minor children, you cannot freely devise (the act of leaving real estate to someone through the terms of a will) your homestead. The law overrides your will if you try to leave your homestead to someone other than your spouse or minor children. Your spouse will receive a life estate, meaning they can live in the home for the rest of their life. After your spouse passes away, the property goes to your children. If you have no spouse, your children inherit the property directly.
Homestead protection against creditors
One of the significant benefits of homestead property in Florida is its protection against creditors. This protection continues after your death, passing to your spouse and minor children. However, if your will states that you want the homestead sold and the proceeds distributed, the protection against creditors does not apply to the proceeds. Proper planning ensures that your homestead remains protected and benefits your family.
Why proper inclusion matters
Properly including your homestead in your will is crucial. If you fail to do so, your family might face legal complications and financial difficulties. For example, if you have a minor child and do not include your homestead correctly, the property might not pass as you intended, leading to disputes and additional legal costs.
Steps to take
To correctly devise your homestead, consider the following steps:
- Consult an attorney: An estate planning attorney can help you understand the specific requirements of Florida’s homestead law and ensure your will complies with these rules.
- Review your will regularly: Life changes, such as marriage, divorce or the birth of a child, can impact your estate plan. Regularly reviewing your will ensures it remains up to date.
- Consider a trust: In some cases, transferring your homestead to a trust can provide additional protection and flexibility. An attorney can help you determine if this is the right option.
Depending upon the estate, other steps may be necessary.
Legally valid wills make a difference
Proper planning ensures your property passes as intended and remains protected from creditors. By understanding the probate requirements, creating a valid will and seeking professional advice, you can provide for your family’s future and avoid potential legal issues.