Legal Question in Wills and Trusts in Florida

Hello, My wife is the sole beneficiary of her father's estate. The main asset of any value is the house. I understand that in Florida that if we have the court declare his home as "Homestead Property" it can be held out of probate. In this case there is a $12,000 home equity line debt on the house and no money in the estate to pay it off. We've been paying the minimum payment to the bank to keep it current. With this debt on the property is there a way to hold it out of probate?

Thank you.


Asked on 9/14/15, 12:04 pm

1 Answer from Attorneys
Barry Stein De Cardenas, Freixas, Stein & Zachary

Hold it out of probate is not a legal term. The property passes by operation of law upon death. First a full administration of the probate is filed and notice of administration is published to provide all creditors notice. They have a right to file claims. After the publication period, than a motion to determine homestead can be filed. The Court enters an order finding this and the property passes by operation of law as of death to his heirs. That does not eliminate the equity line which remains and the property remains the security for pay the payment of the debt. I suggest you need to hire an attorney familiar with probate/real estate.

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Answered on 9/14/15, 12:14 pm


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