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Possession of Homestead by Personal Representative

Written by on Jul 2, 2012| Posted in: General

Possession of Homestead by a Personal Representative Homestead, in the estate and trust context, is the real property owned by a decedent at the time of death, which was used as his primary residence at the time of his death. 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 it can be devised to the spouse if not survived by minor children. If not survived by a spouse or minor child, the decedent is free to devise the property as he wishes.

Typically, if homestead property is devised to an heir or descendant, as permitted by law, it vests in said heir or descendant immediately upon death and is not considered an asset of the estate. In many cases, the homestead can be the largest asset owned by a decedent at the time of death, and if vacant or unoccupied, the question becomes what is a personal representative’s responsibility as to protecting or preserving the home for the Decedent’s heirs and to what extent can other estate assets be used for such protection?

Pursuant to Florida Statute §733.608 (2), General Power of the Personal Representative, if property that reasonably appears to the personal representative to be protected homestead is not occupied by a person who has an interest in the property, the Personal Representative is authorized to take possession of the 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. Pursuant to §733.608 (3)

If the Personal Representative expends funds or incurs obligations to preserve, maintain, insure or protect the property referenced in subsection (2), the Personal Representative shall be entitled to a lien on that property and its revenues to secure repayment of those expenditures and obligations incurred. These expenditures or obligations incurred, including but not limited to, fees and costs, shall constitute a debt to the Personal Representative that is charged against and which may be secured by a lien on the protected homestead, as provided in this section. This debt shall include amounts paid for these purposes after the decedent’s death and prior to the personal representative’s appointment to the extent later ratified by the Personal Representative in the court proceeding provided for in this section.

On the petition of the Personal Representative or any interested person, the court having jurisdiction of the decedent’s probate estate shall have jurisdiction to adjudicate the amount of the debt after Formal Notice to those persons appearing to have an interest in the property. Florida Probate Rule 5.402(b) sets forth the contents required for a valid lien.

The notice of lien shall contain: (1) name and address of the Personal Representative and Personal Representative’s attorney (2) a legal description of the property (3) to extent known, the name and address of each person appearing to have an interest in the property; and (4) a statement that the PR has expended or is obligated to expend funds to preserve, maintain, insure, or protect the property and that the lien stands as security for recovery of those expenditures and obligations incurred, including fees and costs.

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