OT - Florida people

[oceanlovin'ea]

This is more of a legal question and just want to know if anyone has heard of this situation before. My mother owned the property that my brother has lived in for 30 plus years. She just went down to lawyer to make changes to her trust and had it put in his name so that he can apply for homestead exemption. But he can't do anything with the property as long as she is alive. I don't know legal terminology for that. If he dies before she does, the property is still hers because he didn't survive her.
They went down to file for homestead exemption and clerk told him to have his wife fill out a page of the paperwork. He told them that the property is only in his name. She only lives there. The clerk said they have to have record that she lives there because there is a law in Florida that if he dies and she stays in the house for 3 nights, the house can be hers. She has to have a place to live. I have never heard of this and my 93 year old mom is worrying herself to death over this. Lawyer is not in till next week.
Just thought I would see if anyone knew any thing about this.

Thanks,

Linda EA

[Burke]

Think you better wait on the lawyer and let him get the facts straight. Too many conflicting issues here. Sounds like a life estate, but then you say if son dies, property reverts to Mother? Did she put that in the deed? And there is a trust involved? Florida Homestead Act protects the spouse. He cannot devise the house by will if it is to someone else other than spouse. Spouse inherits a life estate.

[taxmom34]

my sister , in florida, did the same thing: went to lawyer to put son's name on deed so she or son could apply for homestead exemption. Now I'm curious on how this will affect my sister.
I have a question, clerk wanted wife (?) to fill out paper work? and if wife ? stays in house 3 nights its hers and not mothers?

[ATSMAN]

This post caught my attention because my in-laws have a small house (double wide) in FL also. So I looked it up:

Protection to surviving spouse or minor child

The provision also protects a spouse in several ways. First, it restrains the homeowner from conveying the property without the approval of their spouse, even if the property is entirely in the name of one spouse, or was purchased entirely from funds of one spouse. The provision also prohibits a spouse from devising the property by will, if the homeowner is survived by a spouse or a minor child. If such a devise is made, it is deemed invalid, and the surviving spouse will enjoy a life estate with the remainder to the decedent's children. The surviving spouse may elect to take a 50% interest in lieu of the life estate as long as the election is made within six months of when the homeowner died. The election, in the form of a prescribed form, is recorded in the official record book of the county where the property lies, not with the probate court. If this election is made, the remaining 50% is inherited by the decedent's children. A spouse may waive these rights in writing with respect to the will, but a minor child is not competent to do so. Finally, the homestead exemption for property taxes automatically attaches to the surviving spouse, so the property will never be exposed to the creditors of either spouse because of the death of the other.

[oceanlovin'ea]

Interesting

My mother does have a trust set up. My brother and I each get half of her estate if we are alive when she dies. Because of some personal issues, she does not want his share of the estate to go to his new wife or his children. So it was worded in the trust that if he should predecease her, the entire estate goes to me. Then I will follow her wishes and give some to his children and the rest to charity. Lawyer also put in that she did not leave them out due to lack of love but for personal reasons.
Don't know exact or legal wording of this but the property was put in his name so that he could get the homestead exemption and have lower property taxes. He does not really own the property until her death. If she dies first, he will get his half of the estate. Since they have only been married for a year, his will leaves to his children but he wants them to let her stay in the house for a few months until she can find other living arrangements. But according to what you have found, she will get the house or at least be able to stay there until her death. But those are his decisions.
My mother can't control what happens after she is dead......even though she would like to. lol

I will call lawyer in the morning and let you know what he says. I appreciate your comments.

Linda, EA

[ATSMAN]

I believe the intent of the Florida law is to keep the surviving spouse and the minor kids in that homestead, regardless of any agreement or will to the contrary. You all need legal counsel to untangle this issue for sure.

[oceanlovin'ea]

talked to lawyer

I called the lawyer this morning. In my mother's case, there is no problem. The property is in a life estate. he has the right to live there as long as she is alive. It is in his name only to be able to get homestead exemption. He can't sell the property or even get a mortgage against the property.

But there is a law in Florida that protects the spouse. If my mother dies and my brother inherits the property and then she will have an interest in the property. He can't cut her out totally, which I don't think he would want to do anyway.

Linda, EA

[ATSMAN]

Glad you got that resolved!