Estate Planning Attorney Timberleaf: Protecting the Family Home in Windermere

Florida homestead rules add another layer. A primary residence in Florida can count as homestead, and the Florida Constitution limits who can receive a homestead if the owner leaves behind a spouse or a minor child. That rule shapes planning for married owners and for parents. You may want the house to go to one person, but the law may say otherwise unless the right steps are taken.

The court side is local. A Florida resident’s estate is handled in the circuit court of the county where the person lived. For an Orange County resident, a home left without a plan is handled through probate in the Orange County circuit court, part of the Ninth Judicial Circuit. Probate takes time and court filings, and the family often waits on the court before the house can be sold or retitled.

Property taxes matter here because many owners hold a homestead exemption through the Orange County Property Appraiser, which lowers the taxable value of a primary home. Have any change in title checked first so you don’t put the exemption at risk by mistake.

A revocable trust is typically prepared in this order:

• List your goals. Decide who should get the home and when.
• Name a trustee and a backup trustee. A trustee is the person who manages the trust. Many owners serve as their own trustee while alive.
• Sign the trust. Florida requires the parts of a trust that act like a will to be signed with the same formal rules as a will.
• Record a new deed. A new deed moves the home into the trust.

That last step is easy to miss. A trust that is signed but never funded with a new deed does not control the house. A pour-over will is the backup: it is a simple will that catches anything left outside the trust and sends it into the trust.

Homestead needs attention here too. Trust language can be written so you keep the right to live in the home, and that right supports keeping your homestead exemption.

Many estate plans include a durable power of attorney and a health care surrogate designation. These let someone you trust handle money or medical choices if you can’t.

It can help to gather your current deed and any old will, if you have them, before a planning meeting.

The wording counts as much as the names. Two names on a deed can mean the survivor gets the whole house, or it can mean each person owns a share that goes through probate.

Several title problems can come up. A home may still be titled to one spouse after a marriage. A parent may be listed alone. Or the home was never deeded into a trust that was signed years ago, which leaves the house outside the trust.

Once it is clear how the home is held, the options can be weighed. Transferring the home to a revocable trust means it is managed under your trust instructions. A joint ownership form with certain wording lets the house pass to the surviving owner. An enhanced life estate deed, often called a lady bird deed, is recognized in Florida: you keep control during life, and the home passes at death to the people you name.

These options differ in control, probate, and homestead effects. One option may avoid probate but limit what you can do later, while another may keep control but need more steps. Seeing those tradeoffs side by side helps you pick.

Selling or changing the title too early can cause problems later, because a personal representative’s power to act comes from the court.

Where the case is filed is set by law. A Florida resident’s estate is opened in the circuit court of the county where the person lived, so for an Orange County resident, that is Orange County.

Florida has two main paths. Summary administration is a shorter process used for some smaller estates or for estates where the death happened more than two years ago. Formal administration is used when a personal representative, the person who handles the estate, must be appointed. The court gives this person letters of administration, a court paper that grants the power to act.

Homestead gets special care. A Florida homestead may pass outside many creditor claims. Even so, the court may still need to confirm who owns the house before the family can sell or refinance it.

Some owners lived in another state but held a home in this part of town. In that case, a separate case in Orange County may be needed. This second, smaller case is called ancillary probate.