Homestead Protection After Death
Homestead protection from your creditors persists after your death. An attorney from another state asked me the following question. Suppose creditor C has records a civil judgment against debtor D in Florida. D is a Florida resident and lives in a valuable Florida homestead property. D dies leaving his estate, including his homestead, to his adult children. The question is whether D's personal representative has to sell the homestead to pay C's money judgment after D's death.
D's homestead protection applies to his estate. C cannot levy upon the house after D's death. The personal representative will transfer the homestead to D's children as tenants in common. After the transfer the childrens' own creditors, if any, could levy on the property unless the child, himself, moves into the house and makes it his own homestead.
posted by Jonathan Alper, asset protection and estate planning attorney, Orlando, Florida
Actually unless the child lived in the house before the parent's death, the property could be levied by the child's creditors. Title to the property passes by operation of law the moment the parent dies, thus allowing a properly recorded judgment to attach in the blink of an eye. The personal rep's deed merely commemorates a property transfer that has already occurred.
I would be grateful for some initial guidance in the following scenario: Client owns a manufactured home in Florida (title is in her name and in the name of her deceased husband); however, she does not own the land beneath. Her adult granddaughter has been living with and caring for Client for many years, and Client wants to devise her manufactured home to this granddaughter. She has three concerns: the first is whether she has any homestead protection in this type of manufactured home; the second is whether she can transfer that protection (if any exists) to her granddaughter upon Client's death; and the last has to do with the fact that Client's net worth is 'in the red' (and getting 'redder' from credit card debt), and Client is concerned that her creditors will try to force a sale of her manufactured home (whether or not it is deemed constitutionally protected homestead), thus preventing Client's adult granddaughter from having a 'roof over her head' upon Client's death.
My husband and I are in a second marriage and live in MI. We each have three adult children living on their own. We are closing on a condo in FL this week and will live here part of the year. I am a licensed realtor in FL and work here with my license "hung" with a FL real estate compnay. (I do a small amount of other work in MI.)I would like to establish residency and would like to know what kind of deed would be recommended. If the condo is in both our names with just one of us domiciled here (me), can we get a homestead exemption? If I get my driver's license, vote, etc., here can we stay only 4 months of the year? If my husband were to die, am I exempt from claims from his adult children? thanks
I saw your blog. Very nice :)
Two quick questions.....
FYI:
I hold title to my home with both my husband and father as "joint tenants with right of survivorship" **My husband and I were added to title a few years ago and then refinanced the entire loan in just our names removing my father's financial obligation. We all live here as our homestead.
Point #1
My father had a judment entered against him this year for the unpaid balance on a vehicle he voluntarily returned after the death of my mother as he could no longer afford it without her income and didn't drive.
Point #2
We are currently battleing another creditor on a credit card he claims he has no knowledge of. We believe that it may have belonged to my mother before her death. We are waiting for court in a month and have asked for written proof of his signature taking responsibility.....Whether he agreed to be a joint account holder we do not know. He agrees that it may have been possible that he signed something for my mother but can't remember....
My 1st question to you is this....When my father passes away...will we be forced to satisfy any of his judments should we ever sell or refi the home or will the judgments "die" with him?
My 2nd question...Can my father be held responsible for a credit card debt incurred by my mother before she died if he didn't sign responsibility or if they can't provide proof of his signature? (**She died in July 2004)
I hope to hear back from you soon. This directly affects me and has been such a large burden on my mind.
With Kind Regards,
Bethany Wessel
my brother is terminally ill. He has credit card debt. no spouse or co-signer on the credit cards. what will happen to that debt when he dies?
Hello,
i lived with my wife who was a veteran in our condo (homestead exemption) and she passed away last month. the condo was on her name only .my question is how do i find out if she was covered with death insurance on her mortgage so i dont have to pay anything. she left the condo to me in her will........Thanks very much.
My grandmother passed away and in her absence my grandfather would like to add me to the deed. What steps do we need to take in order to do that?
My wifes father has a lot of credit card debt wich he will never pay off. We own the house he lives in will we be responsibl for his debt,thx dave we live in florida
My dad is 83 yrs old and is on social security,he only gets 600.00 a month to live on. he owes 25,000 on his home and is barely making it even with help from his children. he has 30k life ins policy that we will use to pay off his home and to bury him we he passes. problem is, he has a bal of 8,000.00 on an unsecured credit card. what would happen if stops making the min payment on the card,and also would the estate be responsible for the credit card debt after death? thanks rick also he lives in oklahoma