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Litigation Under Florida Probate Code

Author johnbsims3
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#1 - Posted: 23 Oct 2006 14:32 - Edited by: johnbsims3 
Litigation Under Florida Probate Code


HOMESTEAD LITIGATION

I. [ 8.1] INTRODUCTION

II. DEFINING HOMESTEAD

A. [ 8.2] Constitutional Provisions
B. [ 8.3] Statutory Provisions
C. [ 8.4] Applicable Law
D. [ 8.5] Form Of Ownership Of Property
E. [ 8.6] Possession Of Homestead By Personal Representative And Homestead Lien

III. CONTEXTS IN WHICH HOMESTEAD ISSUES ARISE

A. [ 8.7] In General
B. [ 8.8] Tax Exemption
C. [ 8.9] Inter Vivos Alienation Of Property
D. [ 8.10] Inheritance Of Property
E. [ 8.11] Devise Of Property
F. [ 8.12] Exemption From Claims Of Creditors
G. [ 8.13] Waivers Of Homestead Protection

IV. DETERMINATION OF HOMESTEAD STATUS

A. [ 8.14] Presumptions; Burden Of Proof
B. [ 8.15] Importance Of Time Of Execution Of Instrument In Determining Homestead
C. Factual Issues To Be Determined
1. [ 8.16] In General
2. [ 8.17] Residency
3. [ 8.18] Family Status

V. PLEADING AND PROCEDURE

A. [ 8.19] In General
B. Notice Of Proceedings
1. [ 8.20] Necessity Of Providing Notice
2. [ 8.21] Form For Notice
C. Searching For Interested Persons
1. [ 8.22] Necessity Of Search
2. [ 8.23] Form For Affidavit Of Diligent Search And Inquiry
3. [ 8.24] Form For Notice Of Action
D. Guardians Ad Litem
1. [ 8.25] In General
2. [ 8.26] Form For Petition For Appointment
3. [ 8.27] Form For Order Of Appointment
4. [ 8.28] Form For Oath
E. [ 8.29] Petition And Order Regarding Determination Of Homestead Status
F. [ 8.30] Notice Of Taking Possession Of Protected Homestead

I. [ 8.1] INTRODUCTION

The Florida law on homestead has been a complicated area from its inception in the Constitution of 1868, and it was made even more complicated with a 1984 change in the Florida Constitution, which broadened the constitutional definition of the term "homestead." Homestead issues may arise in many different circumstances, and the definitions and considerations may vary from one circumstance to another.
This chapter deals with the limited area of homestead litigation in the probate field. For discussions of homestead property from other perspectives, see Kelley, THE FLORIDA BAR PROBATE SYSTEM Law Notes 19A-19C (Fla. Bar CLE 3d ed. 1996); PRACTICE UNDER FLORIDA PROBATE CODE Chapter 19 (Fla. Bar CLE 3d ed. 2002); Seiden, An Update on the Legal Chameleon: Florida's Homestead Exemption and Restrictions, 40 U.Fla.L.Rev. 919 (1988); Maines & Maines, Our Legal Chameleon Revisited: Florida's Homestead Exemption, 30 U.Fla.L.Rev. 227 (1978). Additional assistance may be found in seminar materials of The Florida Bar and in the many publications of the Attorneys' Title Insurance Fund, Inc. Practitioners are cautioned to review the most current case law in this complicated and ever-evolving field.

II. DEFINING HOMESTEAD

A. [ 8.2] Constitutional Provisions

As indicated in the various sections of this chapter, homestead litigation may require consideration of constitutional as well as statutory provisions.
The applicable constitutional provisions are found in Article X, 4, of the Florida Constitution, which reads as follows:
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:
(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner's consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner's family;
(2) personal property to the value of one thousand dollars.
(b) These exemptions shall inure to the surviving spouse or heirs of the owner.
(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner's spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.
Section 4(a) provides an exemption from forced sale of (1) homestead real property, and (2) personal property up to a total value of $1,000. If a real property homestead is located outside a municipality, up to 160 acres of the homestead, improvements, and contiguous land may be protected. If it is within a municipality, however, the exemption is limited to the residence and contiguous land totaling one-half acre in area. This distinction becomes extremely important, therefore, for those who live in unincorporated areas outside of municipalities. See, e.g., In re Estate of Thornton, 259 So.2d 760 (Fla. 3d DCA 1971).
Residential appurtenances, including separate buildings used for garage, pool, storage, or laundry, are deemed to be part of a homestead. White v. Posick, 150 So.2d 263 (Fla. 2d DCA 1963). Similarly, a mobile home permanently affixed to real estate qualifies as homestead. Gold v. Schwartz, 774 So.2d 879 (Fla. 4th DCA 2001). Growing crops are deemed to be part of homestead realty. Adams v. Adams, 158 Fla. 173, 28 So.2d 254 (1946).
While a condominium may be homestead, a cooperative apartment may not. The owner of a cooperative apartment has only a stock interest in the cooperative, not an interest in the realty. Thus, the interest is not subject to homestead law as to descent. In re Estate of Wartels, 357 So.2d 708 (Fla. 1978); but see Southern Walls, Inc. v. Stilwell Corp., 810 So.2d 566 (Fla. 5th DCA 2002) (co-op constitutes homestead property for purposes of exemption from forced sale by creditors).
A party who owns in excess of 160 contiguous acres of rural land may sell a part of it without complying with the spousal joinder requirements applicable to a deed of homestead property. The presumption is that the instrument alienating the property in question "operates as a selection of homestead to the exclusion of the alienated property from the land from which homestead may be selected." Frase v. Branch, 362 So.2d 317, 319 (Fla. 2d DCA 1978).
Property that has a mixed residential/commercial use may be homestead. If an "imaginary line" could sever the residence from the commercial portion of the property, the homestead exemption from forced sale would extend only to the residence, not to the commercial portion. See, e.g., Thompson v. Hibner, 705 So.2d 36 (Fla. 3d DCA 1998) (affirming determination of homestead status because evidence failed to prove that separate structure was income-producing property at time creditors obtained judgments sued upon); First Leasing & Funding of Florida, Inc. v. Fiedler, 591 So.2d 1152 (Fla. 2d DCA 1992) (finding of homestead as to residential unit of triplex, but excluding two rental units of triplex). See also In re Englander, 95 F.3d 1028 (11th Cir. 1996).
When a husband and wife are separated, they may have different homesteads. A husband and wife in an intact marriage, however, may have only one homestead. Law v. Law, 738 So.2d 522 (Fla. 4th DCA 1999).

B. [ 8.3] Statutory Provisions

Effective January 1, 2002, the legislature added the term "protected homestead" to the list of definitions contained in F.S. 731.201. F.S. 731.201(29) states:
"Protected homestead" means the property described in s. 4(a)(1), Art. X of the State Constitution on which at the death of the owner the exemption inures to the owner's surviving spouse or heirs under s. 4(b), Art. X of the State Constitution. For purposes of the code, real property owned as tenants by the entirety is not protected homestead.
Descent and devise of homestead property are dealt with specifically in F.S. 732.401 and 732.4015, which read as follows:

732.401 Descent of homestead. --

(1) If not devised as permitted by law and the Florida Constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and lineal descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the lineal descendants in being at the time of the decedent's death.
(2) Subsection (1) shall not apply to property that the decedent and the surviving spouse owned as tenants by the entirety.

732.4015 Devise of homestead. --

(1) As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except that the homestead may be devised to the owner's spouse if there is no minor child.
(2) For the purposes of subsection (1), the term:
(a) "Owner" includes the grantor of a trust described in s. 733.707(3) that is evidenced by a written instrument which is in existence at the time of the grantor's death as if the interest held in trust was owned by the grantor.
(b) "Devise" includes a disposition by trust of that portion of the trust estate which, if titled in the name of the grantor of the trust, would be the grantor's homestead.
The Florida Supreme Court has addressed the constitutionality of F.S. 732.401(1). In King v. Ellison, 648 So.2d 666 (Fla. 1995), the court held that there is no conflict between Article X, 4(c), of the Florida Constitution and F.S. 732.401(1) that would render the statute unconstitutional. The court noted that Article X, 4(c), places a restraint on the devise of homestead but is silent concerning disposition of homestead improperly devised. F.S. 732.401(1) addresses this issue by providing how the homestead will descend under these circumstances.
F.S. 732.4015 was amended in 1992 to provide the language set forth in subsection (2). The statutory revision has the effect of casting the grantor of a revocable inter vivos trust as the "owner" of homestead, and making the disposition of property by trust a "devise" if the property would have been the grantor's homestead if it had been titled in the grantor's individual name. If the statutory conditions are met, the restrictions on devise set forth in what is now F.S. 732.4015(1) would therefore control the disposition of this trust property. The amendment codified the Florida case law prohibiting avoidance of the constitutional restrictions on the devise of homestead through the use of a revocable trust. See Johns v. Bowden, 68 Fla. 32, 66 So. 155 (1914); In re Estate of Johnson, 397 So.2d 970 (Fla. 4th DCA 1981).
F.S. Chapter 222 should be consulted in connection with any questions concerning levy and execution on property that is alleged to be a homestead. See also 8.16-8.18.
When there is a conflict between a provision in the constitution as to homestead and mere statutory enactment, the former will prevail. Robbins v. Robbins, 360 So.2d 10 (Fla. 2d DCA 1978).

C. [ 8.4] Applicable Law

In determining whether a parcel of realty is subject to devise or whether devise is limited or proscribed, it is important to compare the date of the decedent's death with the particular Florida constitutional provision then applicable. This is vital when researching case law in preparation for litigation. See, e.g., Robbins v. Robbins, 411 So.2d 1024 (Fla. 2d DCA 1982), in which the date of the deed in question (and the corresponding constitutional provision to be applied) was of critical importance. The law to be applied in determining the disposition of property on the death of a person is the law in effect as of the date of the person's death. Jones v. Jones, 412 So.2d 387 (Fla. 2d DCA 1982).

D. [ 8.5] Form Of Ownership Of Property

A fee simple interest in property is not a prerequisite to gaining homestead status. Ownership interests that may be subjected to homestead status include an undivided interest, an equitable interest, a beneficial interest, a leasehold interest, a legal life estate, or the right of possession. See F.S. 222.05; Bessemer Properties v. Gamble, 158 Fla. 38, 27 So.2d 832 (1946); PRACTICE UNDER FLORIDA PROBATE CODE 19.6-19.12 (Fla. Bar CLE 3d ed. 2002); Seiden, An Update on the Legal Chameleon: Florida's Homestead Exemption and Restrictions, 40 U.Fla.L.Rev. 919, 938-944 (1988). Ownership of a cooperative apartment unit, however, does not qualify for homestead status under Article X, 4, of the Florida Constitution, because of the personal property nature of the ownership interest. In re Estate of Wartels, 357 So.2d 708 (Fla. 1978); but see Southern Walls, Inc. v. Stilwell Corp., 810 So.2d 566 (Fla. 5th DCA 2002) (co-op constitutes homestead property for purposes of exemption from forced sale by creditors).
The title to real property held as a tenancy by the entireties passes from a deceased spouse to the survivor by operation of law because of the nature of an estate by the entireties, and not by reason of the constitutional or statutory provisions. F.S. 732.401(2) is therefore of questionable validity, and is probably surplusage. The subsection's constitutionality may be moot except in a case of simultaneous death.

E. [ 8.6] Possession Of Homestead By Personal Representative And Homestead Lien

Effective January 1, 2002, the personal representative may take possession of the protected homestead for limited purposes. This is a significant change from prior law. F.S. 733.608(2) now provides:
If property that reasonably appears to the personal representative to be protected homestead is not occupied by a person who appears to have an interest in the property, the personal representative is authorized, but not required, to take possession of that property for the limited purpose of preserving, insuring, and protecting it for the person having an interest in the property, pending a determination of its homestead status. If the personal representative takes possession of that property, any rents and revenues may be collected by the personal representative for the account of the heir or devisee, but the personal representative shall have no duty to rent or otherwise make the property productive.
Prior to the change to F.S. 733.608, the personal representative generally had no right to take possession of homestead real property. It generally is not subject to the administration proceedings, and the probate court does not have jurisdiction of it. Spitzer v. Branning, 135 Fla. 49, 184 So. 770 (1938); Walker v. Redding, 40 Fla. 124, 23 So. 565 (1898). But see Monks v. Smith, 609 So.2d 740 (Fla. 1st DCA 1993) (because homestead passed by virtue of devise, rather than by operation of law, it was asset of estate notwithstanding that beneficiary entitled to homestead received it free of claims of estate creditors). It appears that property that was the homestead of the decedent could be subjected to the creditors of the decedent's estate if the property is devised (as permitted by law) to beneficiaries who are not the decedent's "heirs." See 8.12 below; PRACTICE UNDER FLORIDA PROBATE CODE 19.17-19.20 (Fla. Bar CLE 3d ed. 2002); Kelley, THE FLORIDA BAR PROBATE SYSTEM Law Note 19B (Fla. Bar CLE 3d ed. 1996).
Effective for estates of decedents dying after June 12, 2003, if the personal representative spends funds or incurs obligations to preserve, maintain, insure, or protect "protected homestead," the personal representative is entitled to a lien on that property and its revenues to secure repayment of expenditures or obligations incurred. F.S. 733.608(3). The expenditures or obligations constitute a debt to the personal representative. Id. The court having jurisdiction of the decedent's probate estate has jurisdiction to adjudicate the amount of the debt after formal notice to those persons appearing to have an interest in the property. F.S. 733.608(3)(a). The persons having an interested in the homestead property are not personally liable for the debt. F.S. 733.608(3)(b).
The personal representative may enforce the debt by (1) foreclosing on the lien provided for in the statute, (2) offsetting some portion of the debt against probate property that would be distributable to a person having an interest in the protected homestead, or (3) offsetting the debt against revenues from the property. Id.
The personal representative has a lien on protected homestead to secure repayment of the debt, if the personal representative records a notice of lien in the public records. F.S. 733.608(4). The personal representative must file the notice of lien in the probate proceeding but failure to do so does not affect the validity of the lien. The personal representative must serve this notice of lien on those persons appearing to have an interest in the protected homestead. Id. The contents of the notice are set forth in F.S. 733.608(4). Substantial compliance with that subsection renders the notice effective.
The lien terminates on the earliest of (1) recording a satisfaction or release signed by the personal representative in the public records of the county where the property is located, (2) the discharge of the personal representative on completion of the probate administration, (3) one year from the recording of the notice of lien in the public records unless a proceeding to determine the debt or enforce the lien has been filed, or (4) entry of an order releasing the lien. F.S. 733.608(5).
The reader should consult F.S. 733.608 for additional provisions designed to carry out these new provisions providing for the right of a homestead lien. As stated above, these new provisions apply to estates of decedents dying after June 12, 2003. F.S. 733.608(13).

III. CONTEXTS IN WHICH HOMESTEAD ISSUES ARISE

A. [ 8.7] In General

Homestead questions arise in a variety of contexts. These cases may be divided into three basic classes: (1) those dealing with title to the property in question; (2) those dealing with exemption of the homestead from levy by creditors; and (3) those dealing with exemption of the homestead from taxation. The last category is beyond the general scope of this chapter, and is discussed only briefly. The first two categories do involve probate litigation issues, however, and are discussed below.

B. [ 8.8] Tax Exemption

The "homestead exemption" from ad valorem taxation is granted in Article VII, 6(a), of the Florida Constitution. This provision allows a tax exemption to "[e]very person who has the legal or equitable title" to real property, if the property is "the permanent residence of the owner, or another legally or naturally dependent upon the owner."
This constitutional definition of homestead differs from that of Article X, 4, of the constitution, which forms the basis for the homestead provisions related to the alienation, devise, and descent of homestead property. Because of this, the "homestead tax exemption" area has developed its own body of law. This field is related, but not identical, to that discussed in this chapter.

C. [ 8.9] Inter Vivos Alienation Of Property

Article X, 4(c), of the Florida Constitution provides that "[t]he owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift." From the perspective of probate litigation, the joinder requirement means that it may be necessary or advisable to review inter vivos conveyances made by a person during the term of his or her marriage, to determine whether valid title was passed. If the deed is subject to attack because of the absence of the spouse's joinder, the property may still be part of the estate of the decedent on his or her death. See, e.g., Nordman v. McCormick, 715 So.2d 310 (Fla. 5th DCA 1998) (holding that 1917 deed of homestead from owner to his wife was void under 1885 Florida Constitution because wife did not join in deed); Sigmund v. Elder, 631 So.2d 329 (Fla. 1st DCA 1994) (affirming trial court ruling that surviving spouse had only life estate in property purportedly held as tenants by entireties because 1962 deed by deceased spouse into joint names of both spouses was void under provisions of Florida Constitution in effect at time of deed). If a mortgage is similarly invalid, the "mortgagee" would still be a creditor of the estate, but would have no security interest in the homestead property.

D. [ 8.10] Inheritance Of Property

If the homestead definition in Article X, 4(a), of the Florida Constitution is met, the provisions of the constitution and the enabling statute, F.S. 732.401, must be considered. The statute requires that if the property is not devised as permitted by law (see 8.11), the homestead property "shall descend in the same manner as other intestate property." If the decedent is survived by a spouse and lineal descendants, however, "the surviving spouse shall take a life estate in the homestead, with a vested remainder to the lineal descendants in being at the time of the decedent's death per stirpes." F.S. 732.401(1). A person who proves that the decedent "virtually adopted" him or her is an "heir" of the decedent and entitled to a share of an intestate estate including the homestead. Williams v. Dorrell, 714 So.2d 574 (Fla. 3d DCA 1998).
In applying these provisions to a particular estate, consideration must be given not only to the factual issues related to homestead discussed in this chapter, but also to the family relationship and survivorship issues developed in Chapter 2.
Although a surviving spouse's interest may be limited to a life estate, the surviving spouse can obtain a constructive trust against the homestead for cash contributions the spouse made for maintenance and upkeep of the property. Breausche v. Prough, 592 So.2d 1211 (Fla. 2d DCA 1992).

E. [ 8.11] Devise Of Property

If a decedent dies testate, the provisions of Article X, 4(c), of the Florida Constitution and F.S. 732.4015 must be considered in determining whether the homestead property may be devised under the decedent's will. With respect to the devise of property, the constitution provides that "[t]he homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner's spouse if there be no minor child." F.S. 732.4015(1) simply restates the constitutional provision.
To have a valid devise of the homestead to the surviving spouse under these provisions, the devise to the spouse must constitute the decedent's entire interest in the homestead property. This is true both as to the "quality" of the devise, In re Estate of Finch, 401 So.2d 1308 (Fla. 1981), and as to the "quantity" of the devise, In re Estate of Cleeves, 509 So.2d 1256 (Fla. 2d DCA 1987); Iandoli v. Iandoli, 504 So.2d 426 (Fla. 4th DCA 1987). The homestead generally must be devised outright, and directly to the surviving spouse. A devise of homestead property to a revocable inter vivos trust was permitted when the surviving spouse was the sole trustee and sole beneficiary of the inter vivos trust, resulting in a merger, in In re Estate of Donovan, 550 So.2d 37 (Fla. 2d DCA 1989). The decedent's ability to devise the homestead property may be affected by a marital agreement executed by the surviving spouse, as noted in 8.13.
F.S. 732.4015, as amended in 1992, now goes beyond a mere restatement of the constitutional provision and brings the disposition of property through a revocable trust into the statutory restrictions on devising homestead property.

F. [ 8.12] Exemption From Claims Of Creditors

Article X, 4(b), of the Florida Constitution provides that the homestead exemptions "inure to the surviving spouse or heirs of the owner." The effect of that provision is that the homestead property passes to the surviving spouse or heirs of the decedent without any liability for any debts of the decedent other than those listed in Article X, 4(a). This result occurs even if the recipients of the property were not dependent on the decedent. Public Health Trust of Dade County v. Lopez, 531 So.2d 946 (Fla. 1988).
Because the constitutional provision is phrased in favor of the surviving spouse or "heirs" of the decedent, the question arises as to whether the homestead becomes subject to the claims of creditors if the property is in fact devised by the decedent. If so, does it make any difference as to whom the property is devised; i.e., if the devisee of the homestead is someone who is also an heir of the decedent, is the property subject to creditors' claims? Prior to 1997, Florida's intermediate appellate courts appeared to be settling on a rule that the homestead passed free of the claims of the decedent's creditors if the devisees of the property were also heirs of the decedent who were entitled to receive property under the laws of intestacy. Davis v. Snyder, 681 So.2d 1191 (Fla. 2d DCA 1996); Monks v. Smith, 609 So.2d 740 (Fla. 1st DCA 1993); Bartelt v. Bartelt, 579 So.2d 282 (Fla. 3d DCA 1991); State, Dept. of Health & Rehabilitative Services v. Trammell, 508 So.2d 422 (Fla. 1st DCA 1987). But see Walker v. Mickler, 687 So.2d 1328 (Fla. 1st DCA 1997).
In Snyder v. Davis, 699 So.2d 999 (Fla. 1997), the Florida Supreme Court quashed the Second District's decision in Davis v. Snyder and approved the First District's opinion in Walker v. Mickler. (See also Walker v. Mickler, 699 So.2d 687 (Fla. 1997).) The court held that the homestead exemption from claims of creditors inures to the benefit of any devisee falling within the class of persons categorized as "heirs" in F.S. 732.103. The court rejected the narrow entitlement definition that limited "heirs" to only those persons who actually inherit under the intestacy laws at the time of the decedent's death. Thus, a devisee of homestead property who is within the class of potential heirs of the decedent under F.S. 732.103 is entitled to the homestead protection from creditors' claims, even if that person is not an actual heir of the decedent at the time of the decedent's death. See also Moss v. Estate of Moss, 777 So.2d 1110 (Fla. 4th DCA 2001) (brother and niece of deceased spouse of testator were included within definition of "heirs" for purposes of homestead protection even though those individuals would not have received share of estate had testator died without will).
A homestead validly devised to the decedent's child is also protected from forced sale to pay the expenses of administering the decedent's estate. Thompson v. Laney, 766 So.2d 1087 (Fla. 3d DCA 2000).
If the homestead may be devised and the decedent directs by will that the homestead property be sold and the proceeds distributed to any devisees (regardless of their relationship to the decedent), the constitutional prohibition on the enforcement of the claims of creditors does not apply. In such a case, the decedent has actually made a devise of the proceeds derived from the homestead, rather than the homestead itself. Knadle v. Estate of Knadle, 686 So.2d 631 (Fla. 1st DCA 1997); Estate of Price v. West Florida Hospital, Inc., 513 So.2d 767 (Fla. 1st DCA 1987). In In re Estate of Hamel, 821 So.2d 1276 (Fla. 2d DCA 2002), the Second District declined to expand the holdings of Knadle and Price. The court held that the homestead protection inured to heirs for homestead property sold after the decedent's death pursuant to a contract of sale executed by Mr. Hamel prior to his death. The heirs did not lose the homestead protection when prior to the entry of an order determining homestead the heirs transferred title to the homestead property to the purchaser in compliance with the decedent's contract for sale of the property and those heirs were entitled to receive the homestead property pursuant to the residuary clause in the decedent's will.
In HCA Gulf Coast Hospital v. Estate of Downing, 594 So.2d 774 (Fla. 1st DCA 1992), a decedent devised her homestead property to her ex-husband, as trustee of a spendthrift trust for the benefit of her sole heir, her daughter. The court held that the property remained exempt from the claims of the decedent's creditors, just as it would have if it had passed directly to the daughter by devise or intestacy. The court noted that the benefit of the property inured entirely to the daughter, and the trustee "exercised nothing more than a supervisory interest in the homestead." That the intent was effectuated through a spendthrift trust "seems to us a matter of form rather than substance." Id. at 776.
If the decedent devises a life estate in the homestead to someone not an heir with the remainder to someone who is an heir, the homestead exemption will inure to the remainder interest. The life estate, however, is subject to claims of the decedent's creditors. Hubert v. Hubert, 622 So.2d 1049 (Fla. 4th DCA 1993).
Generally a debtor who owns only a vested remainder interest in real property cannot claim a homestead exemption as to that remainder interest in order to protect the property from the debtor's creditors. In re Plaster, 271 B.R. 202 (Bankr. M.D. Fla. 2001); In re Pettit, 231 B.R. 101 (Bankr. M.D. Fla. 1999); In re Lewis, 226 B.R. 703 (Bankr. N.D. Fla. 1998).
If a decedent's homestead passes to the decedent's minor children, they receive the property as heirs, free and clear of the debts of the decedent. If the children later sell the property, the proceeds are not subject to the claims of creditors of the decedent's estate. The rule of Estate of Price does not apply, as the homestead estate has not been converted to dollars before it passes to and vests in the decedent's minor children. In re Estate of Tudhope, 595 So.2d 312 (Fla. 2d DCA 1992).
Homestead property is exempt from forfeiture under the Florida RICO Act, as that Act is not within the exceptions to the homestead protections contained in the constitution. Butterworth v. Caggiano, 605 So.2d 56 (Fla. 1992), 16 A.L.R.5th 1118. Homestead property is also exempt from forfeiture under the Florida Forfeiture Act. Tramel v. Stewart, 697 So.2d 821 (Fla. 1997). The court in Tramel held that a constitutional amendment would be required before the state can forfeit a homestead based on criminal activity governed by the Forfeiture Act.
In Gepfrich v. Gepfrich, 582 So.2d 743 (Fla. 4th DCA 1991), however, homestead property was found not to be exempt from an alimony obligation that predated the purchase of the homestead property. The court determined that the property owner had "unclean hands" and that the court "should not sanction such a blatantly defrauding scheme by permitting the former husband to hide behind the homestead exemption laws." Id. at 744.
In Havoco of America, Ltd. v. Hill, 790 So.2d 1018 (Fla. 2001), the Supreme Court ruled that the homestead exemption protects a debtor's homestead even if the homestead was acquired with nonexempt assets with the intent to hinder, delay, or defraud creditors. The court indicated that the legislature did not have the power to change the rights provided by the constitutional homestead exemption.
In In re Bosonetto, 271 B.R. 403 (Bankr. M.D. Fla. 2001), it was held that the homestead exemption did not protect the half interest of the property kept in a revocable trust or the remaining half interest gifted to a daughter.

G. [ 8.13] Waivers Of Homestead Protection

The decedent and the decedent's spouse may have entered into a marital agreement under F.S. 732.702 in which the surviving spouse waived all of his or her rights in the estate of the decedent. The statute provides that homestead property is one of these rights that may be waived. Such a waiver is the functional equivalent of the death of the surviving spouse, so that he or she is deemed to have predeceased the decedent. Hulsh v. Hulsh, 431 So.2d 658 (Fla. 3d DCA 1983). This rule carries over to the homestead provisions, with the effect that such a waiver may remove the homestead property from the strictures of Article X, 4(c), of the Florida Constitution and F.S. 732.4015 that are discussed in 8.11, thereby enabling the decedent to devise the property if not survived by a minor child. If "a decedent is survived by no minor children and the surviving spouse has waived homestead rights, there is no constitutional restriction on devising homestead property." City National Bank of Florida v. Tescher, 578 So.2d 701, 703 (Fla. 1991); see also Hartwell v. Blasingame, 584 So.2d 6 (Fla. 1991).
Some case discussion has addressed whether a surviving spouse can waive homestead rights after the decedent's death to receive a portion of the property under the decedent's will. See Jacobs v. Jacobs, 633 So.2d 30 (Fla. 5th DCA 1994). The suggestion is that the surviving spouse's waiver would not be effective for purposes of receiving a portion of the homestead under the decedent's will. See also In re Estate of Cleeves, 509 So.2d 1256 (Fla. 2d DCA 1987).
In Rutherford v. Gascon, 679 So.2d 329 (Fla. 2d DCA 1996), the court held that a surviving spouse's agreement with her deceased husband's personal representative to accept a life estate in the decedent's condominium did not constitute a waiver of her homestead rights in the property. The court relied on Cleeves for the proposition that there is no waiver of homestead if the survivor unwittingly treats homestead property as part of the probate estate.

IV. DETERMINATION OF HOMESTEAD STATUS

A. [ 8.14] Presumptions; Burden Of Proof

The constitutional homestead exemption from levy and execution is liberally construed in the interest of protecting the home. Quigley v. Kennedy & Ely Insurance, Inc., 207 So.2d 431 (Fla. 1968); Cain v. Cain, 549 So.2d 1161 (Fla. 4th DCA 1989). In view of the strength of the constitutional protection afforded homestead, it has been held that it is not waived by failure to resist a forced sale. White v. Posick, 150 So.2d 263 (Fla. 2d DCA 1963). There is a factual presumption against abandonment of homestead; continuance of homestead status is liberally construed. Poppell v. Padrick, 117 So.2d 435 (Fla. 2d DCA 1960).
Although homestead exemption laws are to be liberally construed, they are not to be applied "so as to make them an instrument of fraud, or an imposition on creditors, nor as a means to escape honest debts." Vandiver v. Vincent, 139 So.2d 704, 708 (Fla. 2d DCA 1962). The rule of Vandiver was applied in Gepfrich v. Gepfrich, 582 So.2d 743 (Fla. 4th DCA 1991), in which homestead property was found not to be exempt from an alimony obligation that predated the purchase of the homestead property.
A validly executed and recorded deed carries with it a presumption of validity. Saks v. Smith, 145 So.2d 895 (Fla. 3d DCA 1962). Thus, if one seeks to attack a deed of homestead property for lack of sufficient consideration, fraud, undue influence, or duress, the initial burden is on the party challenging the deed. Gregory v. Lloyd, 284 F.Supp. 264 (N.D. Fla. 1968). If there is an issue of fact as to whether an instrument has been executed sufficiently to meet the requirements for alienation of homestead, the degree of proof required to alienate that homestead is extraordinarily high. It was held in Heath v. First National Bank in Milton, 213 So.2d 883, 888 (Fla. 1st DCA 1968), that sufficient execution, for alienation of homestead, must be proved by "unrefutable evidence."
The trial court's determination of disputed questions of fact concerning homestead comes to the appellate court with a presumption of correctness. Weiss v. Stone, 220 So.2d 403 (Fla. 3d DCA 1969). The burden on a losing party seeking to reverse on appeal is that of meeting the "clearly erroneous" test for reversal of a trial judge sitting as a trier of fact.
The issue of the homestead status of property may be raised in a probate proceeding by filing a petition to determine homestead property, as discussed in 8.29. The personal representative should not file a petition challenging the validity of the decedent's transfer of homestead when there are no surviving members of the two protected classes under 4(c) of Article X of the Florida Constitution. In re Estate of Morrow, 611 So.2d 80 (Fla. 2d DCA 1992).

B. [ 8.15] Importance Of Time Of Execution Of Instrument In Determining Homestead

In construing a will to determine if it is defeated by a homestead claim, the date of its execution is irrelevant. The critical moment is the death of the testator, inasmuch as a will has no legal effect until the date of the testator's death. Estate of Murphy, 340 So.2d 107 (Fla. 1976); Jones v. Jones, 412 So.2d 387 (Fla. 2d DCA 1982).
While a will is a transitory instrument, not effective until the testator's passing, the contrary rule is applicable to a deed. The law applicable on the date of a purported conveyance by deed determines one's vested right to homestead. See Robbins v. Robbins, 360 So.2d 10 (Fla. 2d DCA 1978).

C. Factual Issues To Be Determined

1. [ 8.16] In General

If there is a factual issue as to the physical extent of homestead, as respects improved property, the matter becomes a dispute of fact for the trial court to resolve. Weiss v. Stone, 220 So.2d 403 (Fla. 3d DCA 1969). This would not preclude the court, however, in its discretion, from empaneling an advisory jury to decide particularly appropriate factual disputes on which a case might turn. In re Estate of Wartels, 338 So.2d 48 (Fla. 3d DCA 1976), aff'd 357 So.2d 708. See 3.47 of this manual.

2. [ 8.17] Residency

Article X, 4(a), of the Florida Constitution provides that the homestead provisions are "limited to the residence of the owner or the owner's family." This has been interpreted to require that the property be the permanent place of residence, with the owner having the intent of remaining at the property for an indefinite period of time. Engel v. Engel, 97 So.2d 140 (Fla. 2d DCA 1957). A nonresident alien who was living in this state under a temporary visa was therefore precluded from claiming homestead, as he could not establish an intent to remain at the property indefinitely, in In re Cooke, 412 So.2d 340 (Fla. 1982).

3. [ 8.18] Family Status

If the owner of the property establishes permanent residence on the property, it is irrelevant whether any family members (or other persons) also reside there. Art. X, 4(a), Fla. Const.; Seiden, An Update on the Legal Chameleon: Florida's Homestead Exemption and Restrictions, 40 U.Fla.L.Rev. 919, 925 (1988). The concept of "family" is still relevant, however. If the owner does not reside on the property, family members must do so in order to gain the exemption from creditors. The definition of "family" is therefore of critical importance, but no definitions provide a completely accurate guide. Each case must be judged on its own particular facts. See Seiden at 923-938.
The concept of family is also somewhat relevant in determining the ability of the owner to alienate or devise the property, and in determining the devolution of property not devised as permitted by law. This involves the questions of whether the owner is survived by a "spouse," "lineal descendants," or "minor child." These are "status-oriented" questions, determined under the rules developed in Chapter 2 of this manual.

V. PLEADING AND PROCEDURE

A. [ 8.19] In General

The homestead provisions relating to the descent, distribution, and devise of property are self-executing; no action need be taken by the persons who are entitled to receive homestead property. Homestead is not a property right that must always be claimed within a certain time period during the estate administration in order to gain or retain the right (as is exempt property, for example). Rather, homestead is a status of the property itself.
This "status" nature of homestead creates title problems that certainly may have a chilling effect on the marketable title to residential property, and that create potential liability problems for practitioners and personal representatives. As such, it is imperative that the personal representative petition the court to determine the status of any property that under any possible circumstances could be considered to be homestead property. This determination should be made by the court, rather than merely assumed by the attorney or the personal representative. See Kelley, THE FLORIDA BAR PROBATE SYSTEM Law Note 19C (Fla. Bar CLE 3d ed. 1996).
In Ford v. Ford, 581 So.2d 203 (Fla. 5th DCA 1991), a petition for summary administration and a petition to determine homestead property were presented to the court. The petitioners

Author johnbsims3
Admin 

#2 - Posted: 23 Oct 2006 14:34 
claimed there were no assets in the estate and no homestead property. The appellate court determined that the petition for summary administration should have been granted, as there was no real property in the estate. The court also held that the petition to determine homestead property must be denied, however; because there was no real property in the estate, "there is no authority for the probate court to determine homestead property." Id. at 204. The court noted that the probate rules "are not a substitute for declaratory judgment actions or quiet title suits." Id.

B. Notice Of Proceedings

1. [ 8.20] Necessity Of Providing Notice

In petitioning the court to determine the homestead status of property, the personal representative (or any other interested person who is petitioning the court for its order) must be careful to search for and notify all interested persons, including any surviving spouse and lineal descendants of the decedent.
Because the homestead provisions no longer require the family of the decedent to have resided on the property with the decedent, the tendency may be to accept the family situation to be as it may at first appear. This could be misleading and dangerous. In In re Estate of Scholtz, 543 So.2d 219 (Fla. 1989), for instance, the decedent had been separated from his spouse for approximately 30 years when he died. It could easily have appeared that the decedent was unmarried. Upon his death, however, the decedent's surviving spouse was entitled to a life estate in the homestead property, with a vested remainder in his adult daughter.
It is vital to provide notice of the petition to determine homestead property to all persons whose interests may be affected by the court's determination. In Cavanaugh v. Cavanaugh, 542 So.2d 1345 (Fla. 1st DCA 1989), the decedent's heirs were able to petition the court to determine the homestead status of the property seven years after the decedent's estate had been closed. The court held that the heirs were not barred by res judicata because they were not part of the administration of the decedent's estate. The issues of collateral estoppel and laches were not dealt with in Cavanaugh. See, however, Spitzer v. Branning, 135 Fla. 49, 184 So. 770 (1938), in which an estoppel defense (to an assertion of homestead) was rejected.
Persons whose interests may be affected by a determination of homestead could include residual devisees, specific devisees of the alleged homestead property, heirs, and creditors of the estate if other estate assets are insufficient to satisfy the creditors' claims. This will depend on the particular factual situation.

2. [ 8.21] Form For Notice

IN THE CIRCUIT COURT FOR .......... COUNTY, FLORIDA
PROBATE DIVISION
File Number ..........
Division ..........
IN RE: ESTATE OF
..........,
Deceased
NOTICE OF HEARING

TO: ..........
YOU ARE HEREBY NOTIFIED that the undersigned will call up for hearing before the Honorable .........., judge of the above court, in the judge's chambers in the ........... County Courthouse, .........., Florida, on ..... (date) ....., at ..... O'clock ...... M., or as soon thereafter as same may be heard, the personal representative's petition to determine homestead.
Time set aside by the court is ...........
PLEASE GOVERN YOURSELVES ACCORDINGLY.
I CERTIFY that a copy hereof has been furnished to the above addressees by mail on ..... (date) ......
In accordance with the Americans with Disabilities Act, persons in need of a special accommodation to participate in this proceeding shall, within a reasonable time prior to any proceeding, contact the Court, the address of which is:
__________,
Telephone Number __________
__________
Attorney
Florida Bar No. ..........
..........
..........
..........
(address)
Telephone: ..........
[Print or Type Names Under All Signature Lines]
COMMENT: This is FLSSI Form No. P-1.0530 (see 8.29), modified to include the nature of the hearing. This and other forms are available from Florida Lawyers Support Services, Inc., P.O. Box 5647, Tallahassee, FL 32314, 850/656- 7590 or 800/404-9278.

C. Searching For Interested Persons

1. [ 8.22] Necessity Of Search

The petitioner must make a diligent search to determine and locate any surviving spouse and lineal descendants of the decedent, in order to ensure that they are notified of and bound by the court's determination of the homestead status of the property. This may require using an heir-locating service in certain instances. An affidavit of diligent search and inquiry should be filed with the court, and the petitioner may wish to provide any unknown heirs with constructive notice through publication.

2. [ 8.23] Form For Affidavit Of Diligent Search And Inquiry

(Title of Estate)
(Title of Court)
AFFIDAVIT OF DILIGENT SEARCH AND INQUIRY

STATE OF FLORIDA
COUNTY OF ..........
BEFORE ME, the undersigned authority, personally appeared .........., who after being duly sworn, deposes and says:
1. ..... He/She ..... is the personal representative of the above-captioned estate.
2. After diligent search and inquiry to discover the names and residences of all heirs-at-law and devisees of .........., deceased, the affiant herewith sets forth their names and last known residence addresses:
[insert names and addresses]

3. The affiant believes that, in addition to those persons named above, there may be persons who are or may be interested as heirs-at-law or devisees in a proceeding to determine the homestead status of certain real property owned by the above-named decedent and whose names and residences, after diligent search and inquiry, are unknown to the affiant.
__________
Affiant
Sworn to and subscribed before me on ..... (date) ....., by ..... (name) .....
__________
Notary Public -- State of Florida
..... (name, typed or printed) .....
Personally Known ___
OR
Produced Identification ___
Type of Identification Produced ..........
(Seal)

3. [ 8.24] Form For Notice Of Action

(Title of Estate)
(Title of Court)
NOTICE OF ACTION

TO: All Unknown Heirs and Devisees of .........., Deceased
YOU ARE NOTIFIED that a petition to determine homestead has been filed in the above-captioned estate and you are required to serve a copy of your written response to it, if any, on .........., petitioner's attorney, whose address is .........., on or before .........., and to file the original with the clerk of this court either before service on petitioner's attorney or immediately thereafter; otherwise, a default will be entered against you for the relief demanded in the petition, without further notice.
Dated ..........
__________
Clerk

D. Guardians Ad Litem

1. [ 8.25] In General

If minor children must be served with notice of the petition to determine homestead property, or if unknown or unascertained parties are involved, a guardian ad litem could be needed to represent the interests of those persons. This must be determined on a case-by-case basis, and the factual allegations set forth in the petition for appointment of the guardian ad litem would need to reflect the particularities of the situation.
The attorney must also consider the impact of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. Appx. 501 et seq. If a person having an interest in the determination of homestead does not appear in the proceeding (whether or not properly served), that person's interest may not be determined if he or she is in the military service (or for three months after separation from the service) unless the provisions of the Act are complied with. The Act requires, among other procedural matters, that an attorney ad litem be appointed. The importance of having all interested persons present before the court has been emphasized above. If the attorney is unable to determine if an interested person exists or, if he or she does exist, whether that person is a member of the military service, the lawyer should comply with the provisions of the Act. See Law Note 51, Kelley, THE FLORIDA BAR PROBATE SYSTEM (Fla. Bar CLE 3d ed. 1996); Uniform Title Standards 14.1, 14.2.

2. [ 8.26] Form For Petition For Appointment

(Title of Estate)
(Title of Court)
PETITION FOR APPOINTMENT OF GUARDIAN AD LITEM

Petitioner, .........., as personal representative of the estate of .........., deceased, and pursuant to Fla.Prob.R. 5.120, petitions this court for the entry of an order appointing a guardian ad litem in this cause and shows in support thereof the following:
1. .......... died ..... testate/intestate ..... on ..... (date) ....., a resident of ........... County, Florida.
2. Letters of administration were issued to .........., as personal representative of the estate of .........., on ..... (date) ......
3. On ..... (date) ....., .......... filed a petition to determine homestead in this estate and also filed an affidavit indicating that there may be persons who are or may be interested as heirs at law or devisees and who after diligent search and inquiry are unknown to the affiant.
4. There are or may be persons who have claims against or interest in this estate as heirs or devisees of the decedent, whose names are not known to petitioner.
5. It is necessary that a guardian ad litem now be appointed to represent the interests of those persons whose identities or addresses are presently unknown or who are now unascertained and who may now have an interest in this estate as heirs or devisees of the decedent.
WHEREFORE, petitioner respectfully demands that the court appoint some competent person to be selected by the court as guardian ad litem for the unknown heirs or devisees of the decedent, to represent these unknown persons and to defend their interest in, or claims against, this estate.
Under penalties of perjury, I declare that I have read the foregoing, and the facts as alleged are true, to the best of my knowledge and belief.
Executed on ..... (date) ......
__________
Petitioner
__________
Attorney for Petitioner
..... (address and phone number) .....
Florida Bar number ..........

3. [ 8.27] Form For Order Of Appointment

(Title of Estate)
(Title of Court)
ORDER APPOINTING GUARDIAN AD LITEM

On the petition of the personal representative of this estate for an order appointing a guardian ad litem to represent the unknown heirs or devisees of the decedent, and it appearing to the court that it is necessary that a guardian ad litem be appointed to represent unknown beneficiaries and defend their respective rights and interests in the pending matter of a petition to determine homestead property; it is
ORDERED AND ADJUDGED that .........., an attorney admitted to practice before this court, be and is hereby appointed as guardian ad litem to represent the claims or interests of those persons whose identities are presently unknown, or who are now unascertained, and who may have an interest in this estate as heirs at law or devisees of .........., deceased; and it is
ORDERED AND ADJUDGED further that the guardian ad litem prepare and file ..... his/her ..... oath that ..... he/she ..... will faithfully discharge the duties of ..... his/her ..... office, and thereafter make and file such defenses herein as ..... he/she ..... may deem proper to protect the interests of the unknown or unascertained persons in all proceedings had in this estate on the petition to determine homestead property.
ORDERED on ..... (date) ......
__________
Circuit Judge
Copies furnished to: ..........

4. [ 8.28] Form For Oath

(Title of Estate)
(Title of Court)
OATH OF GUARDIAN AD LITEM

STATE OF FLORIDA
COUNTY OF ..........
Before me, the undersigned officer duly authorized to administer oaths under the laws of Florida, this day personally appeared .........., who being first duly sworn, says that
1. ..... He/She ..... is the person who has been appointed as guardian ad litem to represent the claims or interests of those persons whose identities are presently unknown, or who are now unascertained, in the matter of the petition to determine homestead property in the estate of .........., deceased, now pending before the above-styled court.
2. ..... He/She ..... accepts that appointment and will represent the unknown or unascertained persons in these proceedings, and ..... he/she ..... will faithfully discharge ..... his/her ..... duties as guardian ad litem according to law.
__________
Guardian
Sworn to and subscribed before me on ..... (date) ....., by ..... (name) ......
__________
Notary Public -- State of Florida
..... (name, typed or printed) .....
Personally Known ___
OR
Produced Identification ___
Type of Identification Produced ..........
(Seal)

E. [ 8.29] Petition And Order Regarding Determination Of Homestead Status

A petition to determine homestead property normally will be filed by the personal representative, but it may be filed by any interested person. The petition should accurately set forth the facts as to the family situation of the decedent, the decedent's will, the decedent's residence, and any other relevant factual information. The petitioner should be careful to give an accurate portrayal of the facts to the court to assist it in making its determination and to prevent any future challenge to the determination. This is not a specific adversary proceeding under Fla.Prob.R. 5.025(a). Forms for the petition are FLSSI Form Nos. P-4.0410 (Intestate) and P-4.0420 (Testate), available as indicated in 8.21. See also Pleading Form 90, Kelley, THE FLORIDA BAR PROBATE SYSTEM (Fla. Bar CLE 3d ed. 1996).
It is critical that the proper order determining homestead status be utilized. FLSSI makes available eight different orders (Form Nos. P-4.0454 through P-4.0468). The various orders available from FLSSI are designed to take into account the method by which the property devolves and to whom it passes. See also Pleading Form 91 from Kelley, supra, for an alternative form of order.

F. [ 8.30] Notice Of Taking Possession Of Protected Homestead

If the personal representative takes possession of what reasonably appears to be protected homestead pending determination of its status, the personal representative must file a notice that contains a legal description of the property, a statement of the limited purpose for holding the property, the name and address of the personal representative and the personal representative's attorney, the date, location, and time the petition to determine homestead status will be heard, if known, and, if the personal representative is in possession, the date the personal representative took possession. Fla.Prob.R. 5.404(a)-(b). The notice shall be served by formal notice on interested persons and on any person in actual possession of the property. Rule 5.404(c). A form for the notice is FLSSI Form No. P-4.0400.

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