Florida Homestead Probate FAQ

Florida homestead probate questions almost always come down to three facts: who survived the owner, how title was held, and whether a court has yet said so on the record. This page answers more than one hundred and seventy of them, grouped by the moment in the process where they usually come up.

For the law itself, in order, start with our main guide to Florida homestead property in probate. This page is the reference companion to it.

A note on the word “homestead.” This page is about Florida homestead property law statewide. If you are looking for a probate lawyer in the City of Homestead, Miami-Dade County, see our page on probate representation in Homestead, FL.

Does Florida homestead law apply to my situation?

In short. Florida homestead protection depends on ownership by a natural person, use as a permanent residence, and how title was held. It does not depend on whether anyone ever filed for the property tax exemption. These questions cover the threshold facts that decide whether the rules apply to your property at all.

Does the house automatically go to my spouse when I die in Florida?

Not necessarily. If you leave descendants and the house is protected homestead, your spouse takes only a life estate under Fla. Stat. § 732.401(1), with a vested remainder to your descendants. Fee simple to the spouse happens only where no descendants survive.

What makes a house “homestead” in Florida, and do you have to file for it?

Homestead status comes from ownership by a natural person, use as the residence of the owner or the owner’s family, and the size limits in Art. X, § 4(a). Nothing has to be filed. The tax exemption application is a separate matter.

Does homestead status depend on the tax exemption, or are they two different things?

Two different things. The tax exemption under Art. VII, § 6 is applied for with the county property appraiser. Constitutional protection at death arises from ownership, residence and intent. A parent who never filed can still own fully protected homestead.

Was the house still homestead if she was living with me at the end?

Probably. Abandonment turns on intent to return, and a temporary absence, including a nursing home stay or a move in with family, does not automatically destroy homestead status. The question is fact-specific and frequently litigated.

Does a house that was rented out still count as homestead when the owner dies?

It can. Renting cuts against an intent to return, but it is one fact among many. A short rental during a hospital stay reads very differently from a multi-year lease signed after a permanent move.

Is a duplex homestead if the owner only lived in half of it?

The owner’s own residence portion can qualify. Inside a municipality, Art. X, § 4(a) limits the exemption to the residence of the owner or the owner’s family, so the rented half generally falls outside the protection.

How much land is protected, half an acre or 160 acres?

Both, depending on location. Art. X, § 4(a) protects up to 160 acres of contiguous land outside a municipality and up to one-half acre inside one. Acreage beyond the applicable ceiling is not covered.

Does homestead protection apply if the owner wasn’t a Florida resident?

Generally not. Florida homestead depends on Florida domicile, which is why Fla. Prob. R. 5.405 requires the petition to state the county of domicile at death. A nonresident’s Florida house is usually an ordinary probate asset.

Does homestead apply to a second home or vacation home in Florida?

Vacation and second homes do not qualify. An owner has only one homestead at a time, and it must be the residence of the owner or the owner’s family. The second property is an ordinary probate asset.

If the house was owned jointly with right of survivorship, do we still need probate?

Title passes to the surviving joint owner instantly by survivorship, so there is nothing to probate as to the house. Fla. Stat. § 731.201(33) also places that property outside “protected homestead” under the Probate Code.

If we owned it as husband and wife (tenants by the entireties), does homestead law even matter?

Rarely for the house itself. Entireties property passes to you by survivorship, and § 731.201(33) excludes it from “protected homestead,” so the devise and descent rules never engage. Creditor exemption can still apply.

My name is already on the deed with my mom, do I still need probate?

It depends on how the deed reads. With right of survivorship, her share passes to you automatically. As tenants in common, her half is still hers at death and passes under the homestead rules, usually requiring a Fla. Prob. R. 5.405 determination to clear title.

What if my dad never filed for the homestead exemption, is the house still protected?

Constitutional protection does not depend on the tax exemption. A residence can qualify as protected homestead at death under Art. X, § 4 even if no one ever applied to the property appraiser for the exemption under Fla. Stat. § 196.031.

My mom moved into a nursing home before she died, did the house lose homestead status?

Not automatically. Abandonment turns on intent to return, and a temporary absence including residence in a healthcare facility does not by itself destroy homestead status. The analysis is fact specific and is one of the most commonly misjudged issues in this area.

Can a condo be homestead property in Florida?

A condominium unit can qualify. Homestead status depends on ownership by a natural person and use as the permanent residence of the owner or the owner’s family, not on the form of the structure.

What if the property is bigger than the homestead acreage limit?

The protection applies to the portion within the limit and the excess acreage is treated as unprotected. Contiguous land up to 160 acres outside a municipality, or one half acre inside one, is protected.

Can only one house be homestead?

A person can have only one homestead at a time, because the protection attaches to the permanent residence. A vacation property or investment property owned at death is not protected homestead.

Questions about who you can leave the home to

In short. Whether you can leave your Florida home to a particular person depends on who survives you. A surviving minor child bars any devise. A surviving spouse with no minor child narrows it to that spouse alone, in fee simple. With neither, you may leave it to anyone.

Why does my dad’s will say the house goes to me but the lawyer says it doesn’t?

Because Art. X, § 4(c), Fla. Const. overrides the will. If your father was survived by a spouse or a minor child, the homestead devise is void, and the house descends under Fla. Stat. § 732.401(1) instead.

Can you leave homestead to your children if you’re married?

Only if your spouse validly waived homestead rights, or disclaims after your death under § 732.4015(3) and ch. 739. Otherwise, with a spouse surviving, the homestead may be devised to the spouse and to no one else.

Can I leave my house to my kids and not my new spouse in Florida?

Not without a waiver. A second-marriage will leaving the homestead to children from the first marriage fails under Art. X, § 4(c). A § 732.702 waiver signed in the presence of two subscribing witnesses is the reliable fix.

Can I leave my homestead to a friend in my will?

If you are survived by neither a spouse nor a minor child, yes, freely. McKean v. Warburton, 919 So. 2d 341 (Fla. 2005), allowed homestead to pass under the will to residuary beneficiaries in exactly that situation.

Can homestead be left to a grandchild?

With no surviving spouse and no minor child, a grandchild may take by devise like anyone else. If a spouse or minor child survives, the devise is void regardless of the family relationship.

Can I put my homestead in a trust for my spouse, and is that a valid devise?

It can be valid, but only on one condition. Section 732.4015(2)(b) treats a disposition by trust as a devise, so the trust form itself is neither a shield nor a defect. What matters is the quantum your spouse receives. In re Estate of Donovan, 550 So. 2d 37 (Fla. 2d DCA 1989), upheld exactly that arrangement. The testator devised his entire one-half interest in the marital condominium through a residuary clause to his revocable trust, and his wife was both the trustee and the sole beneficiary. Because she held the legal and equitable estates together, they merged in her, and the homestead vested “to the same extent as if there had been no trust.” The court also confirmed two useful points: a residuary clause can carry the homestead if it shows the intent, and a routine “just debts” provision does not cut the devise down into something less than complete. Where the spouse receives anything less than the full fee equivalent, it fails: a life interest under In re Finch’s Estate, 401 So. 2d 1308 (Fla. 1981), a fractional share under Iandoli v. Iandoli, 504 So. 2d 426 (Fla. 4th DCA 1987), and an undivided half with the balance to an adult child under In re Estate of Cleeves, 509 So. 2d 1256 (Fla. 2d DCA 1987). The common drafting failure is a trust paying the spouse income for life with the remainder to the children. That is invalid.

What happens if the will leaves the homestead to someone the law doesn’t allow?

The devise is void, not voidable, and cannot be cured after death. Ballard v. Pritchard, 332 So. 3d 570 (Fla. 2d DCA 2021), confirms the homestead then descends under § 732.401(1) as though there were no will.

If the devise is void, who gets the house instead?

It descends under Fla. Stat. § 732.401(1). A surviving spouse takes a life estate with a vested remainder to the descendants per stirpes, or the spouse may elect an undivided one-half interest under § 732.401(2).

Can I leave my house to my spouse outright if I have adult children?

Adult children do not block it. In re McCartney’s Estate, 299 So. 2d 5 (Fla. 1974), holds that with a spouse and only adult children the homestead may be devised to the spouse absolutely in fee simple.

Does the devise restriction still apply if my kids are all over 18?

Adult children never trigger it. With no minor child, the homestead may be devised to a surviving spouse in fee, and if no spouse survives either, it may be devised to anyone.

My child turned 18 two months before my dad died, does the minor-child rule still apply?

Status is measured at the date of death, so a child already eighteen is not a minor child and does not void the devise. Fla. Prob. R. 5.405 requires minor children to be identified by name and year of birth for that reason.

Can I sell the house to my kids before I die to get around homestead rules?

A completed lifetime transfer is not a devise under Fla. Stat. § 732.4017, provided you retain no power to revoke or revest the interest. A sale or gift of homestead still requires your spouse to join in the deed.

Can homestead be left to a stepchild in Florida?

Only where no spouse and no minor child survive. A stepchild is not a lineal descendant for descent purposes unless legally adopted, so with a surviving spouse or minor child a devise to a stepchild fails.

Can I leave my house to a charity in Florida?

Only if you leave no surviving spouse and no minor child. With neither, the constitutional restriction does not apply and the homestead may be devised to a charity or any other beneficiary.

What is an invalid devise of homestead and can it be fixed?

An invalid devise is a will or trust provision that gives the homestead to someone the constitution does not permit. It is void rather than merely reduced, and it cannot be fixed after death. The property descends under Fla. Stat. § 732.401 instead.

Questions about who inherits

In short. When a homestead is not validly devised, Fla. Stat. § 732.401 decides who inherits it and the will does not. These questions cover spouses, children of prior marriages, stepchildren, grandchildren whose parent died first, unmarried partners, adopted children, and heirs who live out of state or are not United States citizens.

Who inherits the house if there is no will in Florida?

Fla. Stat. § 732.401(1) controls. A surviving spouse with descendants takes a life estate and the descendants a vested remainder per stirpes. With no spouse, the descendants take the whole property; with no descendants, the spouse does.

If my husband died and the house was only in his name, do I get it?

You take a life estate if he left descendants, with the remainder vesting in them, or you may elect an undivided one-half interest within six months under § 732.401(2). If he left no descendants, you take the entire property in fee simple.

Who gets the house if there is a spouse and children from a prior marriage?

The rule is the same as with joint children. The spouse takes a life estate or an elected undivided one-half, and the children of the prior marriage take the vested remainder per stirpes under § 732.401.

What if the decedent had a spouse but no children, who gets the house?

The spouse takes the entire property in fee simple. The life estate in § 732.401(1) is conditioned on surviving descendants, so with none there is no remainder class and the ordinary intestate rules give the spouse everything.

Who gets the house if the only heirs are adult children?

With no surviving spouse, the adult children take the whole property per stirpes at the moment of death. Where there is a will and neither a spouse nor a minor child survives, the will controls instead.

My parents weren’t married, do I still inherit the house?

Marriage between your parents is not required. You are a descendant of your mother, and of your father where paternity was established or acknowledged, and you take under § 732.401 on the same terms as any other child.

Does a girlfriend or unmarried partner inherit the house in Florida?

An unmarried partner inherits nothing by intestacy, however long the relationship lasted. Florida intestacy recognizes spouses and blood relatives. A partner takes only under a valid devise, which requires that no spouse and no minor child survive.

Do grandchildren inherit homestead if their parent died first?

Per stirpes distribution gives them their deceased parent’s share. If one of three children predeceased leaving two children of her own, those grandchildren split her one-third and take one-sixth apiece.

Can a non-U.S. citizen inherit Florida homestead?

Citizenship and residency are irrelevant to descent. A remainder vests in an heir abroad on the same terms as an heir across the street. Immigration status matters only for the new owner’s own property tax exemption, which does not pass down with title.

Does homestead pass to heirs automatically at the date of death?

Title vests at the moment of death by operation of law, with no order of distribution required. In Bayview Loan Servicing, LLC v. Giblin, 9 So. 3d 1276 (Fla. 4th DCA 2009), that determination defeated a lender’s foreclosure on a mortgage the personal representative had signed during probate.

Does an adopted child inherit homestead the same as a biological child?

An adopted child is a lineal descendant in every respect and takes exactly as a biological child does. A stepchild who was never legally adopted takes nothing under § 732.401, however long the relationship lasted.

Does homestead go to the heirs free of the decedent’s debts?

Usually. Art. X, § 4(b) provides that the exemptions inure to the surviving spouse or heirs, so credit cards, medical bills and unsecured judgments cannot reach it. Mortgages, taxes, assessments and construction liens survive.

Questions about the surviving spouse’s life estate and election

In short. A surviving spouse who inherits alongside descendants holds a life estate unless she records an election for an undivided one-half interest within six months of death. These questions cover the choice itself, the deadline, who pays what, and what happens when the family disagrees.

What happens if I missed the 6-month deadline to make the homestead election?

The life estate becomes permanent. Section 732.401(2)(b) allows no extension, and the deadline cannot be enlarged under the probate rules. In Samad v. Pla, 267 So. 3d 476 (Fla. 2d DCA 2019), a spouse who moved for an extension seven and a half months after the death on grounds of excusable neglect was refused: Fla. Prob. R. 5.042(b) reaches only acts required by the rules or by court order, not acts required by statute. Your remaining options are negotiation with the remaindermen, not election.

Do I have to file something in the public records to make the election?

The election is made by filing a notice of election, in the statutory sworn form, for recording in the official records of the county where the property sits. § 732.401(2)(e). A notice handed to the probate clerk and never recorded is not an election.

Is the election better than the life estate, and how do I decide?

Neither is better in the abstract. The life estate gives you the whole house for life at your own expense. The elected half gives you a marketable, mortgageable asset you can pass to your own heirs, and hands the children their half immediately.

Can I be forced to keep a life estate in a house I can’t afford?

You have exits, but they are time-sensitive. Elect the undivided one-half within six months, convey the life estate itself, or negotiate a joint sale with the remaindermen. A surviving spouse may also disclaim under chapter 739. § 732.4015(3).

Who pays for a new roof, the life tenant or the children who get it afterward?

Start with the statute, not custom, and make sure it is the current statute. Section 738.508 took effect 1 January 2025 as part of Florida’s Uniform Fiduciary Income and Principal Act, Laws 2024, ch. 2024-216, § 43. It replaced former § 738.801, which carried this rule under the 2002 Uniform Principal and Income Act. The number was not retired — § 738.801 now holds the uniformity-of-construction provision — so an older memo or form citing § 738.801 for expense allocation will send you to a statute about statutory interpretation.

Section 732.401(3) apportions expenses under chapter 738 until an election is recorded, and § 738.508(2) sorts them into four rules rather than a simple split. The life tenant carries ordinary expenses — ordinary repairs, mortgage interest, recurring taxes, and recurring insurance premiums, plus environmental expenses attributable to her own use. The remaindermen carry payments on the mortgage principal, title proceedings other than the life tenant’s own, comprehensive environmental remediation, and extraordinary repairs. Capital improvements are not in either bucket: § 738.508(2)(d) apportions them actuarially using the IRC § 7520(a)(2) rate and the official mortality tables, with the life tenant paying the whole cost of an improvement not expected to outlast her estate.

A roof falls in the gap between those last two rules, and Florida law does not yet resolve it. The statute never defines “extraordinary repairs,” and no reported Florida decision applies § 738.508 to a roof. Both readings are respectable: an emergency replacement that restores the structure without adding value looks like an extraordinary repair charged entirely to the remaindermen, while a roof replaced at the end of its useful life looks like a capital improvement subject to the actuarial split, because it adds value to what the remaindermen ultimately take. The nearest guidance is Schneberger v. Schneberger, 979 So. 2d 981 (Fla. 4th DCA 2008), which charged hurricane repair costs to the remainderman as extraordinary while leaving ordinary maintenance with the life tenant. Section 738.508(4) lets common law fill the rest, which is another way of saying the answer is argued, not looked up.

One rule overrides all of it: under § 738.508(2)(c), a party who incurs the expense for the benefit of its own estate without the other’s agreement pays the whole thing. Before anyone signs a roofing contract, get the allocation agreed in writing or ask the court to allocate it.

Can a life tenant rent out the homestead and keep the rent?

The life tenant holds the possessory interest and generally may rent the property and keep the rent, while continuing to pay taxes, insurance and ordinary repairs. Renting can cost you the property tax exemption, and § 196.011 requires notice to the property appraiser when entitlement ceases.

Can I sell the house if I only have a life estate?

Not by yourself. A life tenant may convey her life estate but holds no fee title, so a sale of the house requires every remainderman to sign. A life tenant also cannot force a partition sale.

Can I move out and still keep my life estate?

The life estate lasts for your life whether or not you live there. Moving out does not forfeit it. What moving can affect is homestead status for tax and creditor purposes, which turns on intent to return and is decided on the facts.

Can my stepchildren force me out of the house after my husband died?

They cannot. Stepchildren are not lineal descendants under § 732.401 unless the decedent legally adopted them, so they take no remainder at all. Even actual remaindermen have no right of possession while the life tenant lives.

Can my late husband’s children make me sell the house?

They cannot while you hold the life estate. A remainderman has no possessory right and cannot partition against a life tenant. If you elect the undivided one-half, that changes: either cotenant may then partition under chapter 64.

Can a guardian or power of attorney make the homestead election for an incapacitated spouse?

An attorney-in-fact or guardian of the property may elect, but only with court approval on a finding that the election serves the spouse’s best interests over her probable lifetime. § 732.401(2)(a)2., (2)(c). The petition must be filed within the same six months.

If I take the 50% interest, can the children force a sale of the house?

They can. After the election you are tenants in common, and any cotenant may bring a partition action under chapter 64, Fla. Stat. That risk is the price of trading the life estate for a marketable half.

Can I take the elective share and the homestead life estate?

Both are available, but they do not stack cleanly. Protected homestead is included in the elective estate under § 732.2035(2), and § 732.2055(1)(a) values a life estate or an elected one-half at a flat 50% of fair market value, which credits against your 30% share.

What is the difference between homestead rights and the elective share?

Homestead rights are constitutional, automatic and attach to one specific property under Art. X, § 4 and § 732.401. The elective share is statutory, must be affirmatively elected, and is 30% of the whole elective estate under § 732.2065.

What are my options as a surviving spouse, life estate or half the house?

Those are the two choices under Fla. Stat. § 732.401 where descendants survive. The default is a life estate with a vested remainder to the descendants, and the alternative is an elected undivided one half interest as a tenant in common, which must be recorded within six months of death.

Is the homestead counted in the elective share?

Protected homestead is included in the elective estate under Fla. Stat. § 732.2035(2). A life estate or an elected one half interest is valued at a flat fifty percent of fair market value under Fla. Stat. § 732.2055(1)(a), and Fla. Stat. § 732.2095 supplies the parallel rules for valuing what the spouse receives toward satisfying the share.

Questions about creditors, Medicaid and liens

In short. Protected homestead is beyond the reach of general creditors, and the exemption passes to the surviving spouse and heirs by operation of law, without anyone filing anything. Only three classes of lien reach it. These questions cover which debts survive, what Medicaid can and cannot do, and the drafting mistakes that forfeit the protection outright.

Do I have to sell the house to pay my mother’s credit card debt?

You do not. Unsecured credit card debt is exactly what Art. X, § 4(a), Fla. Const. blocks, and § 4(b) carries that protection to the heirs. Section 733.608(1) makes every asset except protected homestead available for claims.

Does homestead protection continue after the owner dies?

It continues in full. Art. X, § 4(b) provides that “these exemptions shall inure to the surviving spouse or heirs of the owner.” Death transfers the exemption with the title rather than lifting it.

Do the decedent’s medical bills have to be paid from the house?

Medical, hospital and nursing bills are ordinary unsecured claims and are not among the constitutional exceptions, so they cannot force a sale of protected homestead. They are paid from other estate assets, or they go unpaid.

Can a nursing home put a lien on the house after death?

An unpaid nursing home bill is an unsecured claim, not one of the Art. X, § 4(a) exceptions, so it does not support a forced sale of protected homestead. A recorded judgment may still cloud title and have to be cleared at closing.

Will Medicaid take the house after my parent dies in Florida?

Usually not, though the protection is conditional rather than absolute. Section 409.9101(3) creates a debt for assistance paid after age 55, but (6) bars enforcement where a spouse, a child under 21, or a blind or permanently disabled child survives, and (7) bars enforcement against property exempt from creditors’ claims. If the home is not protected homestead, that shield is gone.

Can the IRS put a lien on Florida homestead?

Federal tax liens arise under federal law, and the Florida constitutional exemption does not defeat them. This is the one large category where a homeowner’s confidence in Art. X, § 4 is misplaced.

What debts can be collected against homestead, such as the mortgage, taxes and contractor liens?

Art. X, § 4(a) names three exceptions: property taxes and assessments; obligations contracted for the purchase, improvement or repair of the property, which covers the mortgage and contractor liens; and obligations for house, field or other labor performed on the realty.

If I sell the inherited homestead, do the sale proceeds stay protected?

Do not count on it. Proceeds have been protected only narrowly, where the money is kept segregated and the seller can show a genuine intent to reinvest in a new Florida homestead within a reasonable time. Commingled proceeds are ordinary cash.

When does protected homestead lose its creditor protection in probate?

Most often because it was never protected homestead. Property held in tenancy by the entireties or joint tenancy with survivorship is excluded by § 731.201(33), and homestead devised to someone who is not an heir falls under the personal representative’s control. In re Estate of Mahaney, 903 So. 2d 234 (Fla. 2d DCA 2005). Abandonment and the acreage limits do the rest. That rule assumes a decedent survived by neither a spouse nor a minor child, which is the only situation in which homestead is freely devisable in the first place, and “heir” is the defined term in § 731.201.

Can code enforcement or HOA liens be enforced against homestead?

They are treated differently. HOA and condominium assessments ride with the property and must be dealt with. Code enforcement liens fall outside the constitutional exceptions, so a city generally cannot force a sale to collect one, but the lien still clouds title until cleared.

Does homestead protect the house from my creditors after I inherit it?

Only if it becomes your own homestead. Art. X, § 4(b) shields the property from the decedent’s creditors. Protection against your creditors depends on whether you own and occupy it as your residence, which is a separate question decided on your facts.

Does homestead count toward the probate attorney’s percentage fee?

It should not. Protected homestead is not a probate asset under § 733.608(1) and is inventoried without a value under Fla. Prob. R. 5.340(a), so it sits outside the compensable value driving the § 733.6171(3) schedule, which is defined by inventory value. Homestead work is billed as an extraordinary service under § 733.6171(4)(i). No decision holds this squarely, but Estate of Shefner v. Shefner-Holden, 2 So. 3d 1076 (Fla. 3d DCA 2009), describes fees set after exclusion of the homestead.

Can the personal representative put a lien on the homestead for expenses she paid?

She can, for funds spent to preserve, maintain, insure or protect it. § 733.608(3). The lien attaches and takes priority only when a notice of lien is recorded, the interest holders bear no personal liability, and it dies one year after recording unless an enforcement proceeding is filed.

Does a judgment lien attach to homestead property after death?

A general judgment lien does not attach to protected homestead, and the exemption from forced sale inures to the surviving spouse and heirs under Art. X, § 4(b). Liens for taxes and assessments, purchase money, and labor or materials furnished to improve or repair the property are the constitutional exceptions.

Are funeral expenses paid out of the homestead?

Protected homestead is not available to pay funeral expenses or administration costs, because it is not an asset in the personal representative’s hands under Fla. Stat. § 733.608(1). Those obligations are paid from the probate estate.

Questions about the homestead determination proceeding

In short. The petition to determine homestead status is permissive as a matter of law and effectively mandatory as a matter of title insurance. These questions cover who may file it, what the verified petition must plead, how notice is given, how long it takes, why petitions get denied, and how the resulting order is appealed.

How long does a petition to determine homestead take in Florida?

As a general practice range and not a rule, an uncontested petition runs about one to three months from filing to signed order, driven by formal notice and the judge’s calendar. Contested waiver or abandonment disputes take longer. Rule 5.405 sets no deadline for the court.

Can you file a homestead petition without opening a full probate?

The petition is filed in a probate proceeding, but it does not have to be a formal administration. Courts routinely determine homestead inside a summary administration under Fla. Stat. § 735.201(2), which measures the estate after exempt property comes out.

Who has to be served or sign off on a homestead petition?

Every interested person must be served by formal notice under Fla. Prob. R. 5.040: the surviving spouse, each heir or devisee, and the personal representative. No one has to consent, but an order entered without proper service on an heir can be attacked later.

Do I file in the county where the house is or where the person died?

File where the decedent was domiciled at death, because that is where the probate case belongs, and Rule 5.405 requires the petition to state that county. Recording is the opposite: a surviving spouse’s § 732.401(2) election is recorded where the property sits.

Can I file a petition to determine homestead years after the death?

There is no deadline. Estates are routinely reopened, or opened for the first time decades later, for exactly this purpose. The facts that control, who survived and how title was held, were fixed at the date of death and do not expire.

What forms do I need for a petition to determine homestead in Florida?

A verified petition carrying the ten allegations Rule 5.405 requires, formal notice with proof of service, and a proposed order naming each person entitled and defining each interest. Confirm any downloaded form includes the waiver-method and minor-children allegations added effective 1 October 2025.

Can homestead be determined in a summary administration?

The court can enter an order determining protected homestead status in a summary administration, and that is the usual route where the estate qualifies under Fla. Stat. § 735.201(2). The homestead value is subtracted when testing the seventy five thousand dollar threshold.

Does homestead have to be listed on the probate inventory?

Real property appearing to be protected homestead must be listed on the inventory and designated as such, but it is listed without a value under Fla. Prob. R. 5.340(a).

Is there a deadline to determine homestead status?

No statutory deadline applies to filing the petition, and these are regularly filed years after a death when a sale or refinance forces the issue. The thirty day appeal window under Fla. R. App. P. 9.170(b)(13) applies once the order is entered.

Why was my petition to determine homestead denied?

The common reasons are a petition that omits one of the ten verified allegations, service by informal rather than formal notice, a failure to establish the decedent’s domicile or the property’s residential use, minor children not identified by name and year of birth, or property the decedent did not own at death.

Questions about selling, title, mortgage and insurance

In short. Most inherited-home sales fail for the same reason: title vested at death, but the public record does not show in whom, and no underwriter will insure a closing on a guess. These questions cover clearing title, the personal representative’s limited authority, mortgages, insurance, occupancy and how sale proceeds are divided.

Can I sell my deceased mother’s house before probate is finished?

You can, because protected homestead passes outside probate and does not wait for the estate to close. Clifton v. Clifton, 553 So. 2d 192 (Fla. 5th DCA 1989). What you usually cannot skip is the Rule 5.405 order the title underwriter wants.

Why won’t the title company insure the sale of my inherited house?

Because the record still shows a dead owner and nothing in it proves who the heirs are. Underwriters want an order identifying each person entitled by name, proof of formal notice, and a deed signed by every one of them.

Can the personal representative sell the house without the beneficiaries’ consent?

Not if the house is protected homestead. Section 733.607(1) keeps it out of the PR’s possession and § 733.608(1) out of the estate’s assets. Harrell v. Snyder, 913 So. 2d 749 (Fla. 5th DCA 2005), found no power to sell even under a broad will clause.

Do I need a court order to sell an inherited house in Florida?

Not as a matter of law where the property is protected homestead, since the court never had authority over it and title vested in the heirs at death. The Rule 5.405 order is obtained for the title underwriter, not for the judge.

How do I get the house out of my dead parent’s name?

Three routes: an order determining protected homestead under Rule 5.405, a summary administration under § 735.201(2), or an affidavit of heirship where the underwriter will accept one. Each does the same job of establishing on the record who now owns it.

How do I remove a deceased person’s name from a Florida deed?

There is nothing to remove. A recorded deed is a historical record of one transfer, not a register of current owners, and it is never amended. You record the court order or administration documents proving succession, and the current owners sign the next deed.

Can we just sign quitclaim deeds among the heirs instead of doing probate?

Quitclaims do not solve this. A quitclaim conveys only whatever interest the signer actually holds and never establishes who the heirs legally are, so if the family’s belief about heirship is wrong the defect stays in the chain of title.

Do I need a quiet title action on an inherited Florida house?

Usually not. A Rule 5.405 determination is the faster and cheaper tool for an ordinary homestead descent question. Quiet title is for a genuine adverse claim or a broken chain of title, not for the routine problem of a deceased record owner.

Who pays the mortgage while the house is in probate?

The people who inherited it. Protected homestead is not an estate asset under § 733.608(1), so the estate has no duty to carry it, and the mortgage stays enforceable because the exemption never applied to a lien the owner voluntarily granted.

Do the heirs inherit the house with the mortgage, or does the estate pay it off?

With the mortgage. The lien rides with the property, and § 733.608(1) leaves protected homestead out of the assets available for debts and expenses. Where a life estate exists, § 732.401(3) splits carrying expenses between the life tenant and the remaindermen under ch. 738.

Can the bank call the loan due when the owner dies?

Generally not, on a transfer at death. The Garn-St Germain Act, 12 U.S.C. § 1701j-3(d), bars a lender from exercising a due-on-sale clause on a home of fewer than five dwelling units where the transfer is by devise, descent or operation of law on the death of a joint tenant or tenant by the entirety, where it goes to a relative resulting from the borrower’s death, or where a spouse or child becomes an owner. Read that as a bar on acceleration, not a right to assume: the loan terms still govern, and the original borrower is released only where the lender accepts a written assumption. The payments still have to be made, and arrears remain an independent ground for foreclosure.

Can I assume my parent’s mortgage on an inherited Florida home?

Often possible in practice. Servicers commonly recognize a successor in interest who inherits and occupies the home, allow payments to continue, and consider a formal assumption on their own documentation. No Florida statute compels it, so treat it as a lender-by-lender question.

What happens to a reverse mortgage on the homestead when the borrower dies?

It generally becomes due when the last borrower dies, leaving the heirs to repay it, refinance, or sell. These loans are typically non-recourse, so the lender usually looks to the property. A surviving non-borrowing spouse may have separate rights under the loan documents.

Who pays the property taxes, HOA dues and utilities during probate?

The heirs, because they own the property. Taxes, assessments and HOA dues also fall within the constitutional exceptions and ride with the home. A personal representative who advances funds to preserve or insure it can record a lien under § 733.608(3).

Does the homeowners insurance stay in force after the owner dies?

Coverage does not vanish at death, but the named insured is gone and the policy no longer matches who owns the property. Notify the carrier promptly and get the current owners named. An unreported ownership change is a common reason a claim is denied.

Will insurance cancel because the house is vacant during probate?

It is more likely to be excluded than cancelled, and the wording matters more than most people expect. Florida distinguishes vacant, which concerns the absence of furniture and furnishings, from unoccupied, which concerns the absence of people, and a house still full of a decedent’s belongings is often unoccupied without being vacant. Hehemann v. Michigan Millers Mutual Insurance Co., 240 So. 2d 851 (Fla. 4th DCA 1970), where the Fourth District explained that vacancy “applies to inanimate objects, whereas ‘Occupancy’ refers to animate objects”. Trigger periods are commonly 30 or 60 consecutive days, whether vacancy exists is normally a jury question, and ambiguous exclusions are read against the insurer. Andrews v. United Services Automobile Ass’n, 837 So. 2d 1190 (Fla. 2d DCA 2003), which reversed a directed verdict because “different conclusions can be drawn from the evidence”. No Florida appellate court has yet decided how these clauses apply where the owner has died and the home sits empty during probate, so notify the carrier early and ask about a vacancy endorsement or a vacant-property policy. Section 733.608(2) lets a PR insure unoccupied homestead.

Can I live in the house during probate, and for how long?

If you hold an interest, you can stay. A surviving spouse’s life estate is possession for life. A personal representative’s § 733.608(2) possession reaches only property not occupied by someone who appears to have an interest, and carries no power to evict.

Can my brother evict me from my late mother’s home?

Not through the probate court, and not by virtue of being personal representative. Co-owners each have the right to possess the whole property. A sibling who wants the occupant out and the property divided generally has to bring a partition action under Chapter 64.

Can I rent out the inherited house while probate is pending?

The owners can, since protected homestead belongs to them and not to the estate. A personal representative cannot, because § 733.608(2) possession exists only to preserve, insure and protect, with no duty to make the property productive. A life tenant controls possession.

Who gets the rent if the inherited house is being rented out?

Whoever holds the possessory interest. A surviving spouse with a § 732.401(1) life estate takes the rents and bears the matching expenses under ch. 738. After a § 732.401(2) election, spouse and descendants share proportionately as tenants in common.

How are sale proceeds split between the spouse and the children?

Along the lines the homestead order defines. A life estate and a vested remainder each have value, and the parties typically negotiate the split or set it actuarially at closing. A timely § 732.401(2) election avoids the exercise by fixing one-half to each side.

How long does it take to get my check after the estate sells the house?

Homestead proceeds usually go to the owners at closing, because the money is theirs rather than the estate’s. Delay comes from unresolved shares, a minor’s interest held under court supervision, or funds escrowed pending the homestead order. Treat any timeline as case-specific.

Questions about trusts, lady bird deeds and joint ownership

In short. A revocable trust and a lady bird deed both avoid probate, and neither one overrides the constitutional devise restriction. These questions cover homestead held in trust, enhanced life estate deeds, joint ownership and survivorship title, adding a child to the deed during life, and whether a deed signed without a spouse’s joinder is any good.

Is a lady bird deed still valid if there are minor children?

Not as to the remainder. Art. X, § 4(c), Fla. Const. bars any devise of homestead when a minor child survives, and § 732.4017 gives no shelter because the grantor keeps the power to revoke and revest. Title passes under § 732.401 instead.

Does a lady bird deed override the homestead devise restriction?

It does not. The retained power to sell, mortgage or revoke is exactly what § 732.4017 excludes from safe harbor, so the remainder designation operates as a devise. Name someone other than the spouse while a spouse or minor child survives and it fails.

Do we still need probate if there’s a lady bird deed?

Usually not for that house, because the remainder passes automatically at death and nothing has to be administered. Probate is still needed if the designation violated Art. X, § 4(c), if a spousal joinder is missing, or if other assets exist.

Does putting my homestead in a revocable trust lose the creditor protection?

Generally not. The exemption follows the property, and § 736.1109(2) provides that a general power of sale, or a general direction to pay debts, expenses and claims, does not subject protected homestead to creditors or administration expenses.

Does homestead in a trust still lose the tax exemption?

No. A settlor who transfers the home into his own revocable trust and keeps living there still qualifies. Section 196.031(1)(a) extends the exemption to a person holding “the legal title or beneficial title in equity” who in good faith makes the property a permanent residence, and § 196.041(2) declares a beneficial interest for life to be equitable title. The Third District reached the same result for a more restrictive arrangement in Robbins v. Welbaum, 664 So. 2d 1 (Fla. 3d DCA 1995), and again for a 99-year lease in Higgs v. Warrick, 994 So. 2d 492 (Fla. 3d DCA 2008), where § 196.041 deems a lessee under a bona fide residential lease of 98 years or more to hold equitable title, though the Third District certified conflict with the Fourth District on the point. The exemption belongs to the person, not to the trust. Two cautions: the ad valorem exemption is construed strictly against the taxpayer, unlike the Art. X, § 4 creditor exemption, and the exemption is personal to the settlor rather than something a successor trustee or beneficiary simply inherits. Expect the property appraiser to ask for the trust instrument and a certification of beneficial interest.

If the house is in a trust, does the surviving spouse still get homestead rights?

The spouse does. Section 732.4015(2)(b) treats a trust disposition of the grantor’s homestead as a devise, and under § 736.1109(1) a devise violating Art. X, § 4(c) sends title down § 732.401 at the moment of death. That is Aronson v. Aronson, 81 So. 3d 515 (Fla. 3d DCA 2012).

Is a trust distribution of homestead subject to the same devise restrictions?

It is. The restriction attaches to the disposition, not to the document, and § 736.1109(4) reaches revocable pour-over trusts under § 733.707(3) and testamentary trusts. A trustee cannot distribute what passed by operation of law at death.

Does a transfer-on-death or beneficiary deed work for a Florida house?

There is no such instrument here. Florida has no transfer-on-death deed for real property. Other states allow a revocable beneficiary deed; in Florida the enhanced life estate deed does that work, subject to the devise restriction.

Should I add my kids to the deed to avoid probate on my Florida home?

Rarely a good idea. It is a completed gift of a present interest, it exposes the home to the child’s creditors and divorce, it can trigger reassessment at just value under § 193.155(3) as to the transferred interest, and it cannot be undone without the child’s cooperation.

Was the deed my mom signed valid if my dad, her spouse, didn’t sign it?

Probably not, if the property was homestead and they were married when she signed. Both spouses must join in a sale, mortgage or gift of homestead, and § 732.7025(2) confirms a devise waiver does not cure a missing joinder. Have the deed and the marriage dates reviewed.

Is the house homestead if it was in the decedent’s trust?

It can be. Fla. Stat. § 732.4015(2) treats the grantor of a qualifying trust as the owner, so property held in a revocable trust can still be protected homestead and remains subject to the devise restriction.

Does joint tenancy with right of survivorship beat the homestead descent rules?

Survivorship title does control, because Fla. Stat. § 732.401(5) makes the descent rules inapplicable to property held in tenancy by the entireties or joint tenancy with rights of survivorship, and Fla. Stat. § 731.201(33) excludes that property from the definition of protected homestead.

Questions about property taxes after a death

In short. The homestead tax exemption and the Save Our Homes cap both turn on ownership and residence as of January 1, and neither simply passes with the house. These questions cover the assessment reset, the narrow exceptions, portability for a surviving spouse, back-tax liens, and the income tax treatment of an inherited home.

Can I keep my parent’s homestead exemption after I inherit the house?

You cannot. Entitlement is personal, not attached to the building, and it is measured against whoever owns and occupies the property each January 1. Section 196.011 also puts the duty to report the change on the person who knows about it.

Can I keep the Save Our Homes cap on an inherited house?

Only through a listed exception: a surviving spouse, a minor child taking by operation of law on death, or another person who is a permanent resident and was legally or naturally dependent on the owner. Adult children who inherit and move in do not qualify.

Does the Save Our Homes cap transfer to a surviving spouse?

It does. Section 193.155(3) excepts transfers between husband and wife, including a transfer to a surviving spouse, from reassessment, so the spouse keeps the accumulated benefit while continuing to own and occupy the home.

Does a minor child or grandchild living in the house keep the cap?

A minor child does where title passes by operation of law on the owner’s death. A grandchild keeps it only by fitting the separate exception for a permanent resident who was legally or naturally dependent on the owner. Living there is not enough on its own.

When do I have to notify the property appraiser that the owner died?

Section 196.011 ties the duty to the point entitlement to the exemption ceases, not to a fixed calendar date, and it falls on the person who knows. Report it promptly, because the § 196.161 penalties attach to exemptions left in place.

Can the property appraiser back-tax me for keeping the exemption after death?

The appraiser can, and it is expensive. Section 196.161 authorizes back taxes for up to 10 years, a 50% penalty for each year and 15% interest per annum, with 30 days to pay before a lien is filed. A clerical mistake by the appraiser limits it to 5 years with no penalty or interest.

Can a surviving spouse use portability to move the tax benefit to a new house?

A surviving spouse can. The accumulated benefit carries to the next Florida homestead, within statutory limits, on a timely application filed in the new county. Adult heirs who never held the cap have nothing to port.

Does the widow’s or widower’s exemption apply after my spouse dies?

That is a separate statutory exemption administered by the county property appraiser, applied for separately from the homestead exemption. It has nothing to do with who inherits the house or with the protection in Art. X, § 4. Ask the appraiser’s office what applies in your county.

Do I owe Florida inheritance or estate tax on the house?

Florida imposes no inheritance tax and no state estate tax. Federal estate tax reaches only very large estates and is a separate analysis that does not turn on homestead status. Ask a CPA if the estate is substantial.

Do I get a step-up in basis on the inherited homestead?

Generally yes. For federal income tax purposes inherited property ordinarily takes a basis stepped up to its date-of-death value, which is separate from anything the probate court or the property appraiser decides. Confirm the figures with a CPA.

Will I owe capital gains tax if I sell the inherited Florida house?

Only on appreciation after the date of death, because the stepped-up basis resets the starting point, and selling costs reduce the gain further. A quick sale after death often produces little or no taxable gain. This is a CPA question, not a probate one.

Questions about waiving homestead rights

In short. A waiver of homestead rights must satisfy Fla. Stat. § 732.702 or § 732.7025, and the formalities are unforgiving. These questions cover prenuptial and postnuptial agreements, waivers buried in deeds, what specific language Florida courts have accepted and rejected, and exactly which rights a waiver gives up and which it leaves untouched.

Can a spouse waive homestead rights so I can leave the house to my children?

A valid § 732.702(1) waiver makes the spouse the legal equivalent of having predeceased you, so the devise restriction lifts and the will controls. City Nat’l Bank of Fla. v. Tescher, 578 So. 2d 701 (Fla. 1991).

Does a prenup automatically waive Florida homestead rights?

Only if its language reaches homestead. A waiver of “all rights” or equivalent does, but the document must be signed in the presence of two subscribing witnesses. A premarital agreement requires no financial disclosure under § 732.702(2).

Does a postnuptial agreement waive homestead rights?

It can, and unlike a prenuptial agreement it requires fair disclosure of the other spouse’s estate under Fla. Stat. § 732.702(2). Disclosure is not the usual failure point though. In Mendia v. Galvez, 418 So. 3d 838 (Fla. 3d DCA 2025), a postnuptial agreement failed for a different reason entirely: its waiver was expressed only in the context of “a subsequent dissolution of marriage proceedings, if any,” and no dissolution ever happened, so the waiver was contingent on an event that never occurred. A same-day quitclaim deed also failed, because it used only generic “remised, released and quitclaimed” language and never mentioned homestead or hereditaments.

Does signing a deed count as waiving homestead rights?

Only with waiver language in it. Generic “granted, bargained and sold” boilerplate is not a waiver, Thayer v. Hawthorn, 363 So. 3d 170 (Fla. 4th DCA 2023), while a release of “any marital or homestead interest” is, Weaver v. Hatfield, 424 So. 3d 545 (Fla. 1st DCA 2025).

Questions about homestead disputes and litigation

In short. Homestead disputes usually arrive in one of three shapes: a possession fight inside a blended family, a demand to partition and sell between co-heirs, or a challenge to a determination order the court has already entered. These questions cover what each side can actually do, and what the law will not give them.

My stepmother won’t let me in my dad’s house, what are my rights?

If she holds a § 732.401(1) life estate, possession is hers, and your vested remainder gives you no right to enter or occupy. What you can enforce is upkeep, through a waste claim over unpaid taxes, lapsed insurance or unrepaired damage. Your remainder cannot be sold out from under you.

My father’s new wife is claiming the whole house, is that right?

Only in narrow circumstances. With descendants surviving and no valid devise, she takes a life estate under § 732.401(1) or an elected undivided one-half. She takes the whole house only if no descendants survived, or if the home was validly devised to her in fee simple with no minor child.

Can I contest the homestead determination the court made?

Only by timely appeal, and the tolling rule is where people lose. The order is final and appealable under Fla. R. App. P. 9.170(b)(13), the appeal window is 30 days, and a motion for rehearing in probate must be filed within 15 days under Fla. Prob. R. 5.020(d) to delay rendition at all. Dorsey v. Hearns, 433 So. 3d 481 (Fla. 6th DCA 2026). Steele v. Brown, 197 So. 3d 106 (Fla. 1st DCA 2016), refused to vacate one years later.

My sibling is living in the inherited house rent-free, can I make them pay or leave?

A co-tenant in possession is generally not charged rent for occupying jointly owned property unless you show ouster. What you can do is demand contribution toward taxes, insurance and necessary repairs, seek an accounting for any rents collected from third parties, and file for partition.

My sibling won’t sell the inherited house, can I force a sale?

You can, if you are co-tenants. Chapter 64 partition produces a court-ordered sale and division of proceeds, and credits for taxes and repairs are resolved there. Partition is not available between a life tenant and a remainderman.

Can heirs sue the personal representative for selling the homestead?

They can. A personal representative has no power to sell protected homestead, Harrell v. Snyder, 913 So. 2d 749 (Fla. 5th DCA 2005), because §§ 733.607(1) and 733.608(1) exclude it from the estate. The conveyance itself can be attacked, since the heirs already held title.

Can I sue the life tenant for letting the house fall apart?

Remaindermen can bring a waste claim, and it usually arrives as unpaid taxes, a lapsed windstorm or flood policy, or a roof left long enough to damage the interior. Before an election is filed, expenses are allocated under chapter 738.

Can a surviving spouse be removed from the home by the remainder beneficiaries?

They cannot. A life estate carries the right to possess the home for life, and remaindermen have no power to evict. The personal representative cannot either, because § 733.608(2) preservation possession applies only where the property is not occupied by someone who appears to have an interest.

Can stepchildren contest the will over the house?

They can appear as interested persons if the will names them, but stepchildren are not lineal descendants unless legally adopted, so they take nothing under § 732.401 and cannot invoke the devise restriction on their own. Adoption records often decide the case.

The personal representative changed the locks, is that legal?

Only where the property reasonably appears to be protected homestead and is unoccupied. Section 733.608(2) authorizes limited possession to preserve, insure and protect, and nothing more. It is not authority to exclude an heir who is living there or who appears to have an interest.

Can I challenge my parent’s deed to a caregiver as undue influence?

You can, and undue influence, lack of capacity and forgery are usually pleaded together. If your parent was married, a missing spousal joinder is a separate ground. Medical records around the signing date, the drafting attorney’s file, the notary’s journal and who drove your parent to the appointment decide these cases.

Can Florida homestead property be partitioned?

Once co-owners hold undivided interests, any of them can bring a partition action under Chapter 64 to force a sale and divide the proceeds. Partition is not available between a life tenant and the remainder beneficiaries, because they do not hold concurrent present interests.

Questions about cost, timeline and whether you need a lawyer

In short. Florida requires a personal representative to be represented by counsel unless he is the sole interested person or is himself a Florida attorney. Protected homestead sits outside the statutory fee base because it carries no inventory value. These questions cover what a homestead matter actually costs and how long it takes.

Is homestead property part of the probate estate?

Protected homestead is not an asset in the personal representative’s hands under Fla. Stat. § 733.608(1), so it is outside the probate estate for paying claims and expenses. It still appears on the inventory, listed and designated but without a value, under Fla. Prob. R. 5.340(a).

How is protected homestead different from exempt property and the family allowance?

They are three separate protections that searchers routinely conflate. Exempt property under Fla. Stat. § 732.402 covers household furnishings, two vehicles and certain other items. The family allowance under Fla. Stat. § 732.403 is a cash allowance for maintenance during administration. Neither is the homestead, and qualifying for one says nothing about the others.

Do I need a lawyer to handle homestead property in Florida probate?

In almost every case, yes. The order permanently defines who owns the house and in what shares, the petition is a verified pleading served by formal notice, and Fla. Prob. R. 5.030(a) requires a personal representative to be represented by a Florida attorney unless the personal representative is the sole interested person or is a Florida attorney appearing for himself. Creditors or other beneficiaries defeat the sole-interested-person exception.

How much does it cost to get an order determining homestead?

It depends on whether anyone contests it and on how many interested persons must be served, so no honest figure fits every file. Homestead proceedings are compensable as an extraordinary service under § 733.6171(4)(i). Our guide to Florida probate attorney fees explains how the charges are set.

How much does probate cost in Florida if the only asset is the house?

Often less than families expect, because protected homestead sits outside the compensable value used for the § 733.6171(3) schedule, and because exempt property comes out of the § 735.201(2) test, which can make the estate eligible for summary administration.

Is there a flat fee for a homestead-only probate?

Some firms quote one for uncontested matters. We do not publish a flat fee, because the scope turns on who survived and whether anyone disputes it. Ask any firm for a written engagement that states plainly what triggers additional charges.

Does the homestead value get included when calculating probate attorney’s fees?

Not if it is protected homestead. It is excluded from estate assets by § 733.608(1) and listed in the inventory without a value under Fla. Prob. R. 5.340(a), so it falls outside the § 733.6171(3) compensable value. The same is true of the personal representative’s commission, which § 733.617(2) computes on the identical inventory value, and § 733.617(3)(e) makes dealing with protected homestead an extraordinary service. If the residence is not protected homestead, it is a probate asset and it does count.

How long does probate take when there’s a house involved?

As a general range, an uncontested formal administration involving a homestead commonly runs several months to about a year, with summary administration shorter. Contested determinations, missing heirs and minors’ interests extend that. No court is bound to any of these ranges.

Can I do a homestead petition myself without an attorney?

An interested person may petition on their own behalf, but the petition is verified, formal notice under Rule 5.040 is strict, and the resulting order is final after 30 days. Steele v. Brown, 197 So. 3d 106 (Fla. 1st DCA 2016), shows how hard a bad order is to undo later: relief was refused eight years on, and Fla. R. Civ. P. 1.540 was available there only because the matter had been declared adversary under Fla. Prob. R. 5.025.

What’s the cheapest way to transfer a Florida house after death?

Where it qualifies, summary administration paired with a determination of homestead status. Cheaper still is nothing at all, where survivorship title or a properly drafted enhanced life estate deed already moved title. The cheapest option always ran before the death, not after.

Is summary administration enough to clear title to the homestead?

Frequently yes, provided the order determines homestead status and identifies by name the persons entitled and each interest, which is what an underwriter reads. Ask the title agent what the order must say before it is entered, not after.

Who pays the lawyer, the estate or the heirs?

Usually the heirs who take the house. Protected homestead is not an estate asset, and § 736.1109(2) provides that a general direction to pay debts, expenses and claims does not subject it to administration expenses. Fees for the rest of the administration come from estate assets.

What documents do I need to start probate on my parent’s house?

The death certificate, the original will if there is one, the deed showing how title was held at death, and a list of the surviving spouse and every descendant, with minor children identified by name and year of birth. Bring any marital agreement or deed that might contain a waiver.

About the author. Jose M. Lorenzo, Jr. is the founder of Lorenzo Law and a Florida probate lawyer whose practice is concentrated in estate administration, probate and trust litigation, wrongful death claims brought by a personal representative, and guardianship. Before entering full-time practice he clerked for the Honorable Maria M. Korvick in the Probate Division of the Eleventh Judicial Circuit Court in Miami-Dade County, and spent nearly a decade as a paralegal at two Miami-area firms. Admitted to The Florida Bar in 2013 (No. 107002), Florida International University College of Law.

When to Handle It Yourself and When to Retain a Lawyer

Not every homestead matter needs counsel, and Florida law is explicit about when it does. Use this before you decide.

Your situation	Handle it yourself	Retain a lawyer
You are the only heir, there are no creditors, and nothing is being sold	Possible. Fla. Prob. R. 5.030(a) permits a sole interested person to proceed without counsel	Not required
A closing is scheduled and the title underwriter wants a homestead order	No	Yes. The petition is verified, pleads ten specific allegations, and must be served by formal notice
A spouse survived and the six-month election window is open	No	Yes, immediately. The deadline cannot be extended and the choice is irrevocable
The will left the home to someone other than the spouse or an heir	No	Yes. The devise may be void, and what happens instead is set by statute, not by the will
Heirs disagree about selling, or someone is living in the house rent-free	No	Yes. This is partition and possession litigation
There are creditors, or beneficiaries other than you	No	Yes. Creditors defeat the sole-interested-person exception in Rule 5.030(a)
The property appraiser has issued a back-tax lien	No	Yes. Fla. Stat. § 196.161 allows ten years of back taxes plus a 50% penalty and 15% interest

If you are unsure which row you are in, that is itself a reason to ask. The two calls that cannot wait are a closing that will not fund and a six-month election clock already running.

Talk to us: Lorenzo Law handles homestead determinations and inherited-property title clearing statewide, from offices in Coral Gables and Fort Lauderdale. See our Miami probate attorney and Fort Lauderdale probate lawyers pages, or request a consultation.