Estate Planning: It’s Your Homestead, Even Though You’ve Never Lived There
April 29, 2009
Homestead protections can arise even when they are least expected. Thomas Giblin and his wife Nivia had been separated for 20 years before his death. The year before he died, Thomas purchased property in Broward County, and the title was placed in his name. Thomas never lived in the home, but his wife and daughter did. When Thomas died, the personal representative of his estate took out a mortgage on the home, which the lender later sought to foreclose. In this case, in Bayview Loan Servicing, LLC v. Giblin, that the residence was Thomas’ homestead, even though he never lived there.
The Florida Constitution allows for the protection of homesteads from forced sale for the collection of a debt. Generally, a homestead is a house and its adjoining buildings and land that are used by a person or family for their residence. Recently, the Fourth District Court of Appeals in Florida determined that a homestead could exist, even if one member of the family has never lived there.
Since the court found that the property was a homestead, the protections surrounding that title passed with the homestead to his surviving spouse, pursuant to Florida Statute 732.401(1), leaving the Nivia with use of the home until her death at which time her daughter would own the property.
The Catch... What you need to know is that homestead protections can apply to property that a person has never even lived in. Your homestead may be your most valuable asset and your most valuable protection against creditors. Every estate plan must incorporate careful consideration of the homestead.
Bayview Loan Servicing, LLC v. Giblin, 2009 WL 1139236 (Fla. App. 4 Dist.)
Homestead protections can arise even when they are least expected. Thomas Giblin and his wife Nivia had been separated for 20 years before his death. The year before he died, Thomas purchased property in Broward County, and the title was placed in his name. Thomas never lived in the home, but his wife and daughter did. When Thomas died, the personal representative of his estate took out a mortgage on the home, which the lender later sought to foreclose. In this case, in Bayview Loan Servicing, LLC v. Giblin, that the residence was Thomas’ homestead, even though he never lived there.
The Florida Constitution allows for the protection of homesteads from forced sale for the collection of a debt. Generally, a homestead is a house and its adjoining buildings and land that are used by a person or family for their residence. Recently, the Fourth District Court of Appeals in Florida determined that a homestead could exist, even if one member of the family has never lived there.
Since the court found that the property was a homestead, the protections surrounding that title passed with the homestead to his surviving spouse, pursuant to Florida Statute 732.401(1), leaving the Nivia with use of the home until her death at which time her daughter would own the property.
The Catch... What you need to know is that homestead protections can apply to property that a person has never even lived in. Your homestead may be your most valuable asset and your most valuable protection against creditors. Every estate plan must incorporate careful consideration of the homestead.
Bayview Loan Servicing, LLC v. Giblin, 2009 WL 1139236 (Fla. App. 4 Dist.)