Estate Planning: Probate and Homesteads Do Not Go Together
June 3, 2009

Homesteads are not probate assets. Recently, the 4th District Court of Appeals reversed the trial courts decision which allowed a lien to be placed on a homestead property in order for the curator of the estate, basically the personal representative, to collect her fees for administering the estate.

The court based its reasoning on Florida Statute 733.608 which only allows for a lien to be placed on the homestead property when (1) the personal representative has taken possession of the homestead property and (2) the personal representative had made expenditures for the maintenance of that property. These provisions were not met here because the house was occupied by the decedent’s widow and the curator placed the lien in order to collect her fees for administering the estate, not protecting homestead property.

The Catch… What you need to know is that, by definition, homestead property is not a probate asset.   Florida law allows personal representatives to take possession of homestead property when it is unclear who has rights to the homestead.  As a result, the only time a personal representative is entitled to collect fees against homestead property is when the personal representative rightfully takes possession of the homestead and performs work for the specific purpose of preserving or maintaining the property.

Herrilka v. Yates, 2009 WL 1531772 (Fla.App. 4 Dist.)