Homestead Orders are Permissive
August 1, 2019
In the Fifth District Court of Appeal’s recent opinion in Mullins v. Mullins, June 7, 2019, the court reversed the probate court’s decision, holding that a will established the interest in the real property and not a homestead order from the probate court.
The will that was admitted to probate in this case devised the decedent’s property to her three children, giving a life estate to her two sons. Subsequently the probate court entered a homestead order, reflecting that the property was devised in equal shares to the decedent’s three children, but the order did not mention the life estate interest of the two sons. The issue in this case was the failure to include the life estate interest in the homestead order.
The probate court erred when it determined that the homestead order was the only document that pertained to the parties’ title in the property and ordering that the property be partitioned and sold, with the proceeds divided among the three children.
The appellate court further explained that homestead rights exist absent a court order confirming the homestead exemption. In other words, proceedings to determine homestead are permissive rather than required. Florida Probate Rule 5.405(a), cited by the court, provides that an interested person may file a petition to determine homestead property. Note that the rule says “May file” and not “Shall file”.
The question becomes, then, why file such a petition if it is permissive and not required? Often times such petitions and subsequent orders are needed for changing record title to the property, or for releasing a personal representative from obligations regarding the property.
Other arguments were presented to the appellate court regarding the property, but ultimately the appellate court reversed the probate court.
Very often, title companies require a homestead order when selling a property in order to effectuate that transfer of title that the Mullinscourt mentioned. Is it really permissive, then? Or is it almost required in order to sell? Perhaps this question should be visited in connection with the Florida probate rules.
Florida homestead questions often arise. To have your questions answered, do not hesitate to speak with an experienced probate lawyer.