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Florida Probate Blog

Posts Tagged: homestead

Florida Probate Deadlines

Written by on Aug 23, 2019| Posted in: General

Florida Probate Deadlines The following chart provides many of the Florida probate deadlines that creditors and beneficiaries should be aware of to protect their interests in a decedent’s estate. Production of Original Will (i.e., file original will with court) custodian of will must file within 10 days after receiving information testator is dead Fla.Stat. 732.901(1) Objection to Validity of Will, Qualification of Personal Representative,  Jurisdiction or Venue if served with Formal Notice and Petition for Administration before issuance of Letters of Administration, then 20 days from date of service (read this article for more about this process Death Probate and Due Process) if served with Notice of Administration after issuance of letters of administration, then 3 months from date of service Fla.Stat. 733.212, 733.2123  Fla.Prob.R. 5.040, 5.201, 5.240 Petition for Exempt Property if no will contest, then 4 months from service of Notice of Administration if will contest, then 40 days after termination […]

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Spousal Election to Take One-Half Interest in Decedent’s Homestead Property

Written by on May 24, 2019| Posted in: Probate

A spousal election to take a one-half interest in homestead property instead of a life estate must be made within 6 months of the decedent’s death. If a surviving spouse wants 50% of the homestead property, he or she needs to give notice of the election within 6 months of death – no exceptions! Homestead property in Florida is complicated business.  Article X, Section 4 of the Florida Constitution defines “homestead” property. Homestead property is protected against levy and execution by most judgment creditors (and against creditor claims post death), receives special property tax treatment and is subject to specific restrictions on its descent and devise upon the death of the owner.  This blog is about the descent and devise of homestead. Florida Statute §732.401(1) provides: If not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if […]

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Standing in Probate

Written by on May 12, 2009| Posted in: Estate Litigation

Third District Applies General Agency Principals to Issue of Who is Real Party in Interest A quick glance at any court docket these days will reveal that many foreclosure actions are being prosecuted by someone other than the real party in interest. While it is generally acceptable for an authorized agent to bring a lawsuit on behalf of a principal in a civil action, how and to what extent is this rule recognized in the probate arena? Generally, in actions by or against a probate estate, the personal representative of the estate is a necessary and indispensable party. There is a lot of decisional case law in Florida holding that in cases involving claims made by or against an estate, the estate and its survivors are the real parties in interest, and the personal representative is merely a nominal party.

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Florida Homestead Law and Creditor Claims

Written by on Sep 4, 2008| Posted in: Probate Litigation

Florida Homestead Law About Face by Third District Court of Appeals Advances Creditors Claims to Constitutionally-Protected Homestead Property:  General Direction to Pay Estate Taxes Trumps Constitutional Homestead Protections. In a surprising reversal, the Third District Court of Appeals on Tuesday, September 3, 2008, reheard and reversed its own opinion issued almost 19 months ago in Cutler v. Cutler, In Re:  The Estate of Edith Alice Cutler, 2008 WL 4057751, 33 Fla.L.Weekly D2103a (3rd DCA, No. 3D07-3070, Sept. 3, 2008). The opinion is significant for probate administration and litigation attorneys, and estate planning professionals for at least two reasons: (1) The Third District Court of Appeals joins the Fifth District in expanding the types of interest in land that may qualify for homestead protection; (2) a general direction in the administrative language at the end of a Will may now trump constitutional homestead protections. Cutler involved a Decedent, Edith Cutler, who […]

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