A Petition to Determine Homestead in Florida probate serves several essential purposes. While homestead property generally passes to heirs outside of the probate estate, the petition is a crucial legal tool to ensure that the property (i.e., primary residence) receives the full protection and benefits afforded by Florida’s homestead laws. The following is an overview of its main purposes:

1. Confirming Homestead Status

The primary purpose of the petition is to have the court officially declare the decedent’s (i.e., deceased owner’s) property as homestead under Florida law. This designation provides important protection, such as exempting the property from forced sale by creditors (except for specific obligations like mortgages or property taxes). The homestead determination establishes the property’s legal status as exempt and protected for the surviving family members.

2. Changing the Title

Although homestead property passes outside of probate, a formal court order is often required to update public records and clarify the ownership rights of the heirs. The court’s order from the petition confirms the homestead status and transfers legal title directly to the heirs. The foregoing helps eliminate any ambiguity regarding the rightful owners of the property and ensures that title companies, lenders, or future buyers recognize the heirs’ clear ownership.

3. Releasing the Personal Representative

Once the court determines that the property qualifies as homestead, the Personal Representative (a.k.a., Executor) of the estate is relieved of any duties or responsibilities related to the subject property. Since homestead property does not typically fall within the probate estate, the Personal Representative no longer needs to manage, maintain, or sell the property.

Key Legal Implications:

• Exemption from Creditors: Homestead property is protected from the decedent’s creditors, ensuring that the family home is not sold to satisfy debts. The exceptions are certain obligations like mortgages, property taxes, or federal tax liens.
• Family Protection: Florida homestead laws provide special protection to surviving spouses and minor children, ensuring that the family home is safeguarded from creditors and passed to the appropriate heirs without being sold off to satisfy debts.

Case Example:

In the case of In re Estate of Hamel, the court found that the homestead rights of the heirs vested before the property was sold. As a result, the proceeds from the sale of the homestead property were protected from creditor claims. This case underscores the importance of filing a Petition to Determine Homestead to protect both the property and its proceeds from creditors.

Ultimately, the petition ensures that the homestead property is transferred correctly, protected from creditor claims, and passed to heirs in accordance with Florida law. It also provides legal certainty and clarity to all parties involved.

The foregoing is a brief and general overview of the topic.

If you have any additional questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

In Florida, homestead property refers to a primary residence that is afforded special protections and benefits under the state’s Constitution and laws. These protections are designed to safeguard the home of a Florida resident from certain legal actions and provide tax relief. Homestead property offers several key protections and benefits:

1. Protection from Forced Sale by Creditors

• Exemption from creditors: Homestead property is generally exempt from forced sale to satisfy most types of debts and creditor claims, except for certain specific debts like property taxes, mortgages, or debts related to improvements on the property.
• Unlimited value protection: The exemption applies regardless of the value of the homestead property, provided that it falls within specific size limitations (discussed below).
• Size limits: For urban properties, the homestead exemption applies to up to half an acre of contiguous land within a municipality. In more rural areas, the exemption applies to properties up to 160 acres of contiguous land.

2. Reduction in Property Taxes

• Homestead tax exemption: Florida allows homeowners to reduce the taxable value of their homestead property by up to $50,000. This can significantly lower annual property taxes.
• Save Our Homes (SOH) cap: Under the SOH provision, annual increases in the assessed value of homestead property are capped at 3% or the percentage change in the Consumer Price Index (CPI), whichever is lower. This limits property tax increases even if the market value of the home rises significantly.

3. Inheritance Protections

• Restrictions on devising homestead: Homestead property in Florida is subject to specific inheritance rules designed to protect surviving family members, particularly spouses and minor children. For example:
  • If the decedent is survived by a spouse and/or minor children, the homestead cannot be freely devised to someone other than the spouse or minor child. The spouse generally has a right to a life estate or a half interest in the property, while the minor children receive the remainder interest even if the decedent’s Last Will & Testament suggests otherwise.
  • If there are no minor children and only a spouse survives, the homestead can be left entirely to the spouse or as directed by a Last Will & Testament.

4. Automatic Passing Outside of Probate

Homestead property typically passes directly to the heirs or beneficiaries at death and does not become part of the probate estate, provided it qualifies as homestead under Florida law. This ensures that the homestead property is transferred efficiently to the surviving spouse or children.

Eligibility Requirements for Homestead

To qualify for homestead protection, the following conditions must be met:

• Permanent residence: The property must be the homeowner’s primary and permanent residence.
• Intent to reside: The owner must have the intent to maintain the property as their permanent home.
• Legal or equitable ownership: The homeowner must have legal title or an equitable interest in the property.

Key Statutes and Constitutional Provisions

• Florida Constitution, Article X, Section 4: Provides the homestead exemption from creditors.
• Florida Statutes, Chapter 196: Governs the homestead tax exemptions.
• Florida Constitution, Article VII, Section 6: Covers homestead property tax relief.

In summary, Homestead real property in Florida offers valuable legal and financial protections, including shielding the home from creditors, limiting property taxes and safeguarding inheritance rights for family members.

The foregoing is a brief and general overview of the topic. If you have any additional questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

The Florida homestead law provides robust protection to a resident’s primary home from judgment creditors. According to Article X, Section 4 of the Florida Constitution, a judgment creditor cannot force the sale of a homestead to satisfy a creditor’s monetary judgment, nor does a recorded judgment attach to or become a lien on the homestead property.

Florida courts have extended homestead protection to various types of residences, including condominiums, mobile homes, and manufactured homes.

Florida’s homestead law offers extensive protection, arguably the most comprehensive in the United States. The protection covers the full value of a debtor’s homestead property, limited only by the size of the lot. Individuals from other states sometimes move to Florida and purchase a homestead to shield their assets from creditors.

Since homestead protection is enshrined in the Florida Constitution, it is more enduring than statutory protections, which can be modified or repealed by the legislature. Additionally, homestead protection cannot be overridden by future laws enacted by the Florida legislature.

Homestead property in Florida includes a natural person’s principal residence, up to ½ acre of land within a municipality or up to 160 acres in an unincorporated county. The homestead protection applies to contiguous property used by the homeowner’s family.

Regardless of the location, there is no limit on the square footage or the value of the physical residence. If the property exceeds the size limits, the homestead protection applies pro-rata to the total property value.

The Florida Constitution outlines specific exceptions to homestead protection. The homestead is not protected from:

• Voluntary liens, such as mortgages or home equity loans.
• Mechanics liens for improvements made to the property.
• Liens recorded before homestead acquisition for homeowner association dues and assessments.
• Property taxes, state taxes, and IRS tax liens.

To qualify for homestead protection, three main rules apply:

1. Primary Residence: The property must be intended as the permanent, primary residence.
2. Occupancy: The owner must occupy the property.
3. Legal Title: The owner must hold legal title or a beneficial interest in the subject property.

Primary Residence: The homestead protection only applies if the property is the owner’s primary residence. This intent can be established immediately upon moving in.

Occupancy: The owner must physically reside in the property, although temporary absences are allowed. The homestead protection must be in place before a judgment is recorded in the county where the property is located.

Legal Title: The property must be titled in the owner’s name or a revocable trust. Properties owned by entities such as LLCs or irrevocable trusts do not qualify.

The Florida homestead exemption is a property tax benefit that reduces the assessed value of a home by $50,000 and limits annual increases in property tax assessments. To qualify, the property must be the owner’s primary residence as of January 1 of the calendar year for which the exemption is sought.

Proceeds from the sale of a homestead are protected if intended for reinvestment in a new homestead. The owner must actively search for a new home and keep the proceeds in a separate account, although they can be used for other expenses during the home search.

Florida homestead law exempts homestead properties from fraudulent conversion claims. A debtor can convert non-exempt assets into a homestead to protect them from creditors, even after a lawsuit has been filed, unless the money used was obtained through fraud or deceit.

To qualify, the debtor must be a permanent resident of Florida and the homestead property must be the primary residence.

Homestead protects your home from forced levy and sale by civil judgment creditors.

To claim the Florida homestead exemption, for asset protection, no action is required. For the tax exemption, filing an application or renewal with the county is necessary.

As to Florida homestead after death, the protection continues, and the homestead is not included in the legal proceeding known as probate.

Waiver of homestead protection is possible when pledging the homestead as security for a mortgage loan. Other waivers are generally unenforceable.

As for potential liens on a house in Florida, creditors with valid monetary judgments can get a lien on property, but the homestead is exempt from forced sale and liens.

The foregoing is a brief and general overview of the topic.

If you have any additional questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

If one inherits a house by a Florida Last Will & Testament when the owner passes away with his or her name alone as the owner on the deed, in order to sell it, the inheritor will need to go through the Florida probate court.

Florida does not have an inheritance tax or estate tax. A beneficiary (by Last Will) or heir (without a Last Will) of a deceased person in Florida does not owe any state taxes on inherited property.

Accordingly, to transfer real property from an estate to an heir or beneficiary, the executor or Personal Representative issues and records a deed of transfer in the name of the new owner(s). If the property was held in a trust, then the Trustee will issue the deed to the new owner as directed by the terms or provisions in the declaration of trust by the trustee.

In Florida, there are no separate property taxes, but beneficiaries or heirs will owe federal taxes if the inherited property is sold after transfer. The heir or beneficiary should only owe taxes on the gains (i.e., capital gains) of the property, or if it increased in value from the point of transfer until the point of sale.

With a Lady Bird Deed, under Florida law, when a person dies, the remaindermen (like a designated beneficiary on real property) automatically take possession of the property. No other disposition is legally necessary. Since they inherit by deed in Florida, the said remaindermen are not subject to probate.

It is generally better to receive real estate as an inheritance rather than as an outright gift because of capital gains implications. That is because of the cost basis, which is the cost of the property used to determine the capital gain, if any, when it is transferred. One must pay Capital Gains Tax if they decide to sell the property that was inherited, or a second home or buy-to-let property, in the future. If the property has increased in value since it was inherited or bought it, then the Capital Gains Tax will be deducted from the profit.

As the recipient of an inherited property, one will benefit from a step-up tax basis, meaning they will inherit the home at the fair market value on the date of inheritance(death of the prior owner), and they will only be taxed on any gains between the time the said property was inherit and when it was sold.

The surviving spouse may inherit everything if there are no children or all children are common to both the said spouse & the deceased party. However, if one dies with children or other descendants from the deceased and the surviving spouse, and the surviving spouse also has descendants from previous relationships a different result will occur. Consequently, the surviving spouse inherits half of the intestate (without a Will) property and the descendants inherit the other half.

Florida will afford all intestate heirs an equal share of the estate’s property, which is legally known as “per stirpes.” For example, if a deceased party has four biological and/or adopted children and they were deemed the sole legal heirs to one’s property, each of them would receive 25%.

If one’s heir wishes to mortgage, sell, or rent out the entire property, they must obtain consent from all of the other heirs, yet an heir can sell their individual interest, even to an outsider, without the consent of other heirs.

State laws may vary slightly, but the typical scheme of most states, including Florida (§732.101 to §732.111), is that intestate property passes in this order: spouse, descendants (children or grandchildren), biological and adopted, parents, grandparents, and siblings (and children of deceased siblings).

Formal administration is the more involved form of Florida probate. Formal administration is required for any estate with non-exempt assets valued at over $75,000 when a decedent died within the last two years.

Non-probate assets encompass jointly held property (land, bank accounts) or assets with beneficiary designations or with payable on death designations (life insurance, annuities IRAs).

Exempt property shall consist of: (a) Household furniture, furnishings, and appliances in the decedent’s usual place of abode up to a net value of $20,000 as of the date of death. (b) Two motor vehicles as defined in Stat. 316.003, which do not, individually as to either such motor vehicle, have a gross vehicle weight in excess of 15,000 pounds, held in the decedent’s name and regularly used by the decedent or members of the decedent’s immediate family as their personal motor vehicles.

The favorable aspect is that one could gift their home to their children and if they lived for at least seven years after the gift was made, it would be removed from their estate and no inheritance tax would be due.

In the state of Florida, a $25,000 exemption is applied to the first $50,000 of their property’s assessed value if the property is their permanent primary residence and they owned the property on January 1 of the subject tax year. This exemption applies to all taxes, including school district taxes.

If a person dies before executing a deed to transfer assets to a new owner, the said property will be distributed pursuant to the provisions in the Last Will after probate is concluded. Dying without a Last Will results in intestacy, which requires the court to distribute the deceased party’s assets following Florida’s intestacy laws(i.e., to next of kin).

Inheritances are not considered income for Federal Tax purposes, whether one inherits cash, investments, or property. However, any subsequent earnings on the inherited assets are taxable, unless it comes from a tax-free source.

Selling at lower than fair market value means that an individual will have to report the gift to the IRS. Under IRS rules, as of 2022, one can provide a gift of up to $16,000 as a gift of equity before one (the donor) has to pay gift taxes. As the seller and gift-giver, one must pay the gift tax.

There are several ways to avoid paying capital gains tax on inherited property: Sell the inherited property quickly; Make the inherited property one’s primary residence; Rent the inherited property; Disclaim the inherited property and Deduct selling expenses from capital gains, among others.

Again if a person dies without a will or trust and has assets in their name ONLY, then probate is required to distribute property and monies.

A Florida Lady Bird deed, also known as an Enhanced Life Estate Deed, was created to allow property owners in Florida to transfer property to others automatically upon their death while maintaining use, control and ownership while alive.

As an example, unless the Last Will explicitly states otherwise, inheriting a house with siblings means that ownership of the property is distributed equally. The siblings can negotiate whether the house will be sold and the profits divided, whether one will buy out the others’ shares, or whether ownership will continue to be shared. However, under Florida law, if the siblings cannot agree, and any of the siblings want to sell the house they inherited, they can use a legal proceeding known as a “partition action” to force the sale. This legal proceeding is both expensive and time-consuming.

An executor or Personal Representative of the probate estate can sell the house as soon as it is transferred into their legal possession. The job as Florida Personal Representative is to protect estate assets during probate. So, one does not want to wait too long to sell the house after the person dies.

Under Florida law, a Last Will & Testament can be voided if the said Last Will was procured by fraud, duress, or undue influence. A person must file a petition in a probate court case to contest a Florida Will.

In most circumstances, there will need to be a court order to transfer the property. In Florida, that means opening a probate court proceeding or administration. In the state of Florida, probate is a court proceeding that is filed in the county where the deceased person last resided. The two types of probate are summary and formal administrations.

If probate is not filed, the probate court will not distribute the assets of the estate. The probate process provides a legal mechanism for resolving disputes over the estate, and without it, beneficiaries or heirs may have to resort to litigation to assert their rights.

There are key assets that are protected from creditors in Florida which include: A homestead property, with some acreage limitations; The wages of someone who qualifies as head of household; Annuities; Life Insurance cash value; Retirement Accounts, and Tenants by entireties property when the judgment is against one spouse in a marriage(not both).

Property which is jointly owned with a survivorship right will avoid probate. If one owner dies, title passes automatically to the remaining or surviving owner. There are several joint ownerships- with rights of survivorship for anyone and Tenancy by the Entirety for spouses/married couple.

A Florida homestead is not subject to probate. Probate proceedings involve only assets subject to creditor claims. The Florida homestead is exempt from creditors, so it is not part of the probate estate. Therefore, title to a Florida homestead transfers to heirs quickly (at the time of owner’s death) without waiting for the completion of probate proceedings.

Florida is one of the few states that allow enhanced life estate deed or Lady Bird deeds. These deeds allow residents to preserve their eligibility for Medicaid during their lifetimes while keeping valuable assets in the family. After death, the real property named in a Lady Bird deed passes automatically to beneficiaries without probate, which means that assets cannot be taken by the state to recoup any Medicaid benefits used by the decedent.

Again the decedent’s homestead is not part of the probate estate, because it is not subject to creditors. However, the Personal Representative of the deceased’s estate often needs to obtain a court order stating that the property was the person’s homestead/primary residence, particularly if the family plans to sell the former homestead. The heirs can request or petition a court to issue an Order Determining Homestead Status of Real Property.

Title companies will not insure the sale of a deceased party’s homestead unless the title examiner is sure that the property legally qualified as an exempt homestead, free of potential creditor claims and the heirs or beneficiaries are determined.

A title company knows from the public records that a deceased parent owned their home. However,  it may not be clear from the public records that the residence was, for example, the parents’ homestead because public records do not indicate whether an owner resided in a property at or before death. Even though the owner may have previously applied for a homestead tax exemption, there is nothing recorded in the real estate or Official public records identifying the occupant of the subject property. The deceased parent may have abandoned residency before death; for example, the parent may have been living with a child and may have rented the former homestead property to a tenant to get rental income to live on.

Title companies regularly insist on or require a court order that the property was the owner’s homestead through death when the deceased owner had creditors. A court order requires a court proceeding, and the appropriate court proceeding is a probate. As a result, surviving family members wanting to sell the parents’ former primary residence may have to open a probate proceeding even if the parents conveyed the house to a living trust and there are no probate assets.

The sole purpose of the probate is filing a court petition to declare the deceased’s residence to be their exempt homestead. The probate court routinely grants an order determining homestead status. This order ensures that the house is exempt from unknown claims and leads a title insurance company to issue insurance to potential buyers and their mortgage company.

There are a few states that levy taxes on the estate of the deceased, generally referred to as the inheritance tax (or the death tax). Fortunately, Florida does not have a separate state inheritance tax. Even further, heirs and beneficiaries in Florida do not pay income tax on any monies received from an estate because inherited property does not count as income for Federal income tax purposes (and Florida does not have a separate state income tax).

If an asset does not have a named beneficiary or remainderman, or rights of survivorship, it will probably have to go through probate to change or transfer ownership pursuant to the Florida Probate Rules (2023). The most common assets that go through this process are bank accounts, real estate, and certain personal property.

The foregoing is just a general overview of the subject of Real Estate and Inheritance in Florida.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

The Probate process in Florida is generally the legal transfer of ownership of assets from a deceased party to surviving heirs or beneficiaries as well as the payment taxes, creditors, if any, and expenses. A more legal description may be the legal process of distributing or administrating a deceased person’s estate to their beneficiaries, heirs, and their creditors. The deceased person’s wishes are carried out using valid or properly prepared estate planning documents such as Last Wills & Testaments and Trusts. However, if a deceased person did not have a Last Will or other estate planning documents, their estate will be distributed according to state law (intestacy or next of kin) and what the probate judge determines.

There are two types of probate in Florida. There are Formal and Summary Administrations. The basics of what is required and the differences between the two are generally as follows.

Formal Administration

• A Formal Administration can be used for any kind of estate or if a Personal Representative is necessary for whatever reasons.
• It takes longer to go through a Formal Administration; it will typically cost one more, and it is a more involved process.
• One key aspect of a Formal Administrations is that it involves the appointment of a Personal Representative. This representative will be in charge of the subject probate estate securing information about the assets and debts of the decedent. The term Personal Representative is used instead of Administrator or Executor for the probate proceeding in Florida.
• Typically, one would want to choose this type if they expect that there will be a need to go to court over the decedent’s estate, or if the decedent has a number of known creditors or needs to execute forms, pursue a lawsuit, continue operating a business, etc.

Summary Administration

• An estate is eligible for Summary Administration if the total value of the decedent’s assets that are subject to probate is $75,000 or less, or if they have been dead for more than two (2) years from the date of filing.
• The mere fact that the estate is eligible for this simpler process does not necessarily mean it is the best choice. Summary administration limits what one can do with the estate.
• This summary process may go faster than Formal Administration.
• No Personal Representative is appointed. This aspect makes it substantially more difficult to get through the probate process since there is not one person who is in charge of getting the decedent’s assets and debts together. The assets are directly distributed to the heirs and debtors.

Whether one selects Formal or Summary Administration, there are many legal nuances and pitfalls which could potentially complicate the probate process and the advice and guidance of an experienced Probate and Estate Planning Attorney may prove invaluable.

The foregoing is just a general overview of the subject of the Probate process in Florida.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

Florida is the home to over 350 timeshare resorts, each offering an atmosphere of luxury and comfort for vacationing. Florida has over 8 thousand miles of coastline, making it the perfect destination for a beach getaway.

A timeshare is a vacation property arrangement that lets a person share the property cost with others to guarantee time at the property. However, what is not mentioned are the ever-increasing maintenance fees and other incidental costs each year that can make owning one intolerable.

Legally, a timeshare is a form of fractional ownership in a property, typically in a resort or vacation destination. For example, if a person purchased one week at a timeshare condominium each year, they own a 1/52 part of that unit. Timeshares may be evidenced by a deed (a purchase of an ownership interest in the property) or just a contract (a leasing of the right to use the property).

Usually if one purchases a deeded timeshare, there is no expiration date. This means one is paying the maintenance fee indefinitely, even if the property is not used annually.

There are two basic types of timeshares: (1) the owner of the unit owns a piece of the real estate and (2) the owner of the unit has a lease or right to use the unit for the specified time. If a person owns a unit of a condominium for a week, then they own real estate.

When a timeshare property is owned by deed (deeded ownership), it is considered real property. As such, many real estate laws (though not all) apply to timeshare owners in the same way they are to homeowners. For instance, owners of deeded timeshares must pay property taxes on their vacation real estate. A timeshare estate is a parcel of real property under the laws of the state of Florida.

RTU timeshares are non-deeded and gives an individual the right to use a unit for a set amount of time. This means that, unlike a deeded timeshare contract, one does not actually own the property. The number of years each timeshare contract lasts depends on the resort and brand.

Having a deeded ownership means the subject timeshare is one’s property and have continuing obligations. One can enjoy it with family or friends, rent it out to other vacationers, and/or pass it down to relatives when done using it or after death.

When the owner dies, the timeshare becomes part of their estate. The inheritors of the timeshare become the new owners, and they are compelled to take over the timeshare fees.

Timeshares can pass by Will, Trust or Deed including a Ladybird deed.

In brief, one can refuse to inherit a timeshare. While the laws for rejecting an inherited timeshare can vary from state to state, the actual process will be the same and is widely known as Renunciation of Property.

However, in the case of the owner’s death, a timeshare becomes part of the estate, and therefore, the obligations attached to it are passed onto the next-of-kin or the beneficiary of the estate. Further, depending on the fees and any existing payments, the timeshare can either be a welcomed gift or a financial nightmare.

On average, it costs between 5 to 6 thousand dollars and takes about 12 to 18 months to get out of a timeshare contract using a timeshare exit company or attorney. However, the cost and the timeframe can vary depending on a number of factors including, how many contracts are attached to a timeshare.

Again, there are two distinct types of timeshare contracts one can purchase: a deeded ownership and a Right to Use timeshare. With a deeded timeshare, you own an actual fraction of the property through a deed. Right to use (RTU) gives a person the right to vacation at the property.

Once the owner of a timeshare dies, the timeshare is now subject to probate. Having a Last Will & Testament does not avoid probate, but rather, it instructs legally how the assets (such as the timeshare) should be distributed.

What does Fee Simple mean? Fee Simple is just another way of saying that a timeshare property is “deeded.” A deed is a legal document which provides the title to a timeshare property and grants official ownership rights. Fee Simple is regarded as the preferred type of vacation ownership.

Timeshare agreements usually contain a “perpetuity clause,” saying that the timeshare isvalid for the lifespan of the original owner. When the owner dies, the timeshare becomes part of their estate. The inheritors of the timeshare become the new owners, and they are obligated to take over the timeshare fees.

With approximately 10 million timeshare owners in the U.S. and annual revenues topping 10 billion dollars, vacation ownership is clearly an enormous business. Florida is one of the leading states in terms of the number of timeshares and the fact that several of the largest timeshare companies have their headquarters in the state.

For many timeshare owners, however, ineffective estate planning – or no estate planning at all – leaves their heirs with an expensive and aggravating mess figuring out what to do with the decedent’s timeshare when they pass. This is because owners often think of their timeshare as personal property, like a car or boat, instead of what it really is – deeded real estate.

For most timeshare developers, part of the sales pitch is that the owner can pass their ownership onto their children when they die, which is true. However, because it is legally considered real estate or real property, the only way ownership can transfer from one person to another is via a deed or court order (i.e., probate).

Consequently, what happens when a timeshare owner dies without addressing their ownership in their estate planning? Like many timeshares, it ends up in probate. The probate process is not only expensive and time-consuming, but it also means creditors see it as an asset and can pursue it to settle any debts against the estate.

Furthermore, in Florida, any probate administration involving a Florida-based timeshare must take place in Florida, regardless of where the owner or the heirs live. That can add even more complexity, more aggravation, and more expense to the process. And while there are ways to legally refuse or disclaim an inherited timeshare, that procedure is also a complicated, paperwork laden process, which will require the assistance of an estate planning attorney.

Instead, a more effective course of action is to avoid probate entirely and include one’s timeshare interest in their estate planning, treating it like the deeded real estate that it is. This can be carried out in one of several ways:

1. Distribution through a trust. With a living or inter vivos trust, one can transfer assets into the trust and continue to have access to them. The assets are then distributed directly to one’s beneficiaries after death, bypassing probate entirely. By placing one’s deeded timeshare into a trust, ownership will go to their heirs without having to hire an attorney and go through a probate court proceeding.

• Adding heirs through a deed transfer. By having the names of one’s heirs added to the timeshare deed, they become co-owners by right of survivorship or as a type of designated beneficiary known as remaindermen. That means, when one dies, full ownership automatically transfers to the survivors. One may even want to transfer the deed entirely to their heirs prior to death. However, that will make them legally responsible for the maintenance payments and property taxes sooner than later.

Either of these options will effectively eliminate a great deal of frustration and legal expense for the heirs. Unfortunately, most timeshare owners are not aware of this issue and the property ends up going through probate. When that happens, the timeshare often does not seem worthy of the time and expense involved with the probate administration. Conversely, including it in one’s estate planning will allow the heirs to continue enjoying the travel benefits as part of deceased’s legacy.

If you have questions about how to keep a timeshare out of probate or would simply like to discuss related issues with a qualified estate planning and/or real estate attorney or how to protect your family and assets, contact the office of CASERTA & SPIRITI for a consultation.

Usually, the person or business who owns the real property and the individual or business occupying it will both owe a duty of care to those who enter the premises. If someone is injured while visiting the property, one or both parties may be responsible depending on the circumstances of said accident.

This is called Premises Liability.  A premises liability lawsuit can hold a property owner or occupier and/or possibly others responsible for any injuries and/or damages arising out of an accident or incident occurring on said premises. In all states, owners that occupy a property must make a reasonable effort to maintain a safe environment for visitors to it.

The basic Duty of Care is essentially where a person who owns, leases, occupies, or controls property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition.

Generally, the law holds each person responsible for the consequences of his or her own actions – if your intentional or negligent conduct results in injuries to another person, you may be held civilly liable for the reasonable monetary value of any damages proximately caused by your actions.

Just as an auto accident, there are a few factors that must be present for someone to be considered negligent in the case of a slip and fall accident. If someone is injured on your property, the law does not automatically regard you as responsible, or that you must compensate them.

Under Florida Statute 768.075, a Florida homeowner or property owner cannot be held liable for any injuries or deaths sustained on their real property by a trespasser IF the trespasser was under the influence of alcohol or some other mind-altering substance, etc.

As a rule, property owners are not liable for injuries suffered by trespassers.  However, in any personal injury lawsuit by a trespasser against a property owner, the court will essentially say, that property owners are not usually liable for injuries to trespassers, so an injured party must prove why their case is different regarding circumstances or exceptions, etc.

In general, no liability is incurred since an individual, who is breaking the law by trespassing, waives their right to sue for injury or damages by doing so. However, there are some exceptions that allow certain trespassers to collect compensation if they are injured on an unsafe premises.

Minors or children my be a different matter. If the trespasser is a child, the “attractive nuisance doctrine” may come into play.  This exception protects minor children who are injured on unsafe real property. It is based on the understanding that children can be easily attracted to some unappreciated danger (attracting or enticing a child’s curiosity, such as a pool), or that they can wander into an unsafe situation regardless of the adequacy of warnings. Children are not classified or considered the same as an adult trespasser.  Real property owners or occupiers who do not safely maintain their home or business premises and cause harm to a child can be held responsible.

By and large, property owners cannot use deadly force to protect property.  Although, property owners may be able to shoot at trespassers in self-defense if they fear great bodily harm or death. BE WARNED, however, shooting at a trespasser is always a legal crapshoot.

An owner can also be held liable if he or she rents out a property in a dangerous condition without warning the tenant. In that case, even if the tenant is in total control of the property, any injuries stemming from the previously existing dangerous condition will be the owner’s responsibility.

In most cases, you cannot lose your house in a lawsuit in Florida. The most important and well-known exemption from creditors is the homestead exemption of real property. Your home is protected from creditors in Florida, subject to acreage limitations. There is no monetary limit on the homestead exemption in this regard.

Article X, Section 4 of the Florida Constitution exempts homestead property from levy and execution by most judgment creditors. It means that a creditor cannot place a lien against or force the sale of your homestead to satisfy an obligation or monetary judgment.

Insurance is necessary to protect property owners/occupiers against such liabilities like auto insurance.

Every homeowner’s insurance policy is different, but most slip and fall accidents, for example, will be covered, except where the homeowner acted intentionally to cause the slip and fall. Most homeowner’s policies have two types of coverage, i.e., liability coverage and no-fault medical coverage.

Commercial general liability (CGL) is a type of insurance policy that provides coverage to a business for bodily injury, personal injury, and property damage caused by the business’s operations, products, or injuries that occur on the business’s premises.

Again, under Florida law, the owner of a property, or tenant such as a shop owner, is responsible for maintaining a premises or property in a reasonable condition free of hazards. A failure to do so may create liability if an injury results to a visitor from negligent maintenance.

Premises liability claims are about unsafe conditions on someone’s real property. Personal liability is about someone’s own actions and/or vicarious liability, including respondeat superior, which means a principal is liability or responsible for the acts of their agents or others. When respondeat superior applies, an employer will be liable for an employee’s negligent actions or omissions that occur during the course and scope of the employee’s employment.

The duty of a Florida property owner applies to for-profit companies and nonprofits. Homeowners may be liable. The federal, state, or local governments may also be liable. Governments should protect people who visit courthouses and other public places, among others. Maintenance and repair crews may also be liable if they failed to protect the public.

In the state of Florida, the statute of limitations or deadline for a negligence, accident, or premises liability case is four years from the date of accident, incident, or injury where you must present a claim and file a lawsuit in the appropriate court of the state of Florida or be forever barred from obtaining a recovery.

If you have are any additional QUESTIONS regarding the foregoing matters, contact or call the Attorneys at CASERTA & SPIRITI before an unfortunate and unexpected accident occurs or before any deadlines are missed after an accident occurs!!

Florida law recognizes three basic types of joint ownership. Two are joint tenancy and tenancy by the entireties, which also has what is called a “right of survivorship.”  The term means that, when one co-owner dies, the surviving owner automatically receives full, undivided ownership of the property. By definition, a co-owner who holds a partial interest in a tenancy by the entireties or joint tenancy with right of survivorship cannot transfer that interest to heirs through probate since the interest never becomes a part of the probate estate. Further, with a joint tenancy or tenancy by the entireties, the joint interests must be equal. The third type of ownership is the one without a right of survivorship and that can be transferred by way of probate. It is called tenancy in common. Instead of owning a property together, tenants in common each own a percentage interest that can be transferred. Florida law assumes a 50/50 split, but the percentages can be different if the owners decide otherwise. Consequently, a tenancy in common and Florida estate planning strategies can be utilized for various purposes when a right of survivorship is not the goal or outcome.

If an asset is owned by more than two co-owners, title is usually held as tenants in common, with each owner owning their respective percentages. On the other hand, tenancy by the entireties is reserved for married spouses only, and therefore by definition it is limited to only two owners. A joint tenancy, however, can include three or more joint owners. The result is that, when a co-owner dies, his or her interest merges with the interest of the remaining or surviving owners. For example, a joint tenancy with three owners, and one dies, there are now tow owners with a joint tenancy. The process continues until only one surviving owner remains. The last or final living owner thereby holds a complete and undivided title to the said property.

For purposes of understanding a Florida tenancy in common and estate planning, it merits saying that, although real estate is the most common example when discussing joint ownership formats, other types of assets can be jointly held as well. In the state of Florida, personal property, financial accounts, and many other types of assets be owned jointly as tenants in common, joint tenants with right of survivorship, or tenants by the entireties.

Also, in Florida, a tenancy in common ownership is presumed the default form of co-ownership. If a deed with more than one owner does not specifically state that the owners are tenants by the entireties or joint tenants with a right of survivorship, said owners are presumed to be tenants in common. Tenancy in common can also be created through the “destruction” of one of the other two types of co-ownership. Joint tenancies are destroyed if a creditor attaches the subject property in Florida or if one of the co-owners transfers an interest.  In fact, transfer of an interest destroys a joint tenancy even if the transfer is from one owner to another.

Tenancy by the entireties in Florida is reserved exclusively for a married couple, therefore, it can be destroyed by divorce.  If former tenants by the entireties are no longer married, they become tenants in common, with each having a 50% ownership interest unless a marital property settlement agreement states otherwise.

Joint tenancy with right of survivorship as well as tenancy by the entireties automatically convey ownership interests outside of probate thereby avoiding some of the time and expense related to probate administration in the courts.

Usually, a tenancy in common property interest is the only type of the joint interest types that goes through probate and can be transferred by way of provisions in a Last Will and Testament or through intestate succession (if there is no Will) following Florida law. As a result, if you own a 50% share of a property as tenants in common with another, you can bequeath or devise that 50% share to whomever you direct in your Last Will and Testament (Will), or it can go to your next of kin by way of Florida law if you have no Will. After the probate estate is administered, the designated beneficiary or heir or whatever number of them will then own a 50% interest or share (singularly or aggregately) in the property alongside your surviving co-owner as tenants in common.

Avoiding probate quite often appears to be a popular objective by many in estate planning. However, it is not the only goal. The use of a tenancy in common for Florida estate planning gives one more control over where your joint ownership interest eventually winds up. If you have a joint tenancy with right of survivorship and you die first, your co-owner now holds complete and undivided title to the property. Your beneficiaries or heirs do not receive an interest in it. On the contrary, a tenancy in common allows you leave your half of the Florida property to whomever you desire, including to the co-owner, if that’s what you wish to do.

Florida’s co-ownership options or alternatives allow for a few estate planning possibilities regarding conveying or transferring real estate or other property, while also raising various potential complications. All these can be addressed in more detail in a future article.

If you need assistance in Florida when doing, redoing, revising, orupdating your Estate Plan, please contact one of the attorneys of CASERTA & SPIRITI at your earliest convenience. We have many years of experience with Florida Estate Planning and can assist you in making the appropriate selections or changes which are best suited for your circumstances.