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Should My Florida Homestead Be In My Florida Living Trust?

Florida Homestead Titled in Florida Living Trust

A common question often asked, and one that actually been the subject of some question within the Florida legal community, is whether a Florida Homestead should be titled into a Florida revocable living trust?

When we talk about homestead protection in this setting, we are not talking about the tax exemption status offered by the county of residence. Rather homestead protection in this context refers to the protection against creditor attachment or protection against liens and/or judgments filed against the homestead by a creditor of the homeowner.

Titling a Florida Homestead in a Living Trust [Pros and Cons]

Florida has a well earned reputation for its exceptionally strong, unique homestead protection offered under the Florida Constitution.  When a Florida residence qualifies as a “homestead,” it can’t be attached (i.e., sold or liened to satisfy a debt) by most creditors. And, in bankruptcy, a trustee can’t liquidate a protected homestead to satisfy creditor claims.

Florida’s Unique Homestead Protection 

Most states place a cap on homestead exemptions—with allowable exemption amounts ranging from as little as $5,000 in Virginia to as much as $500,000 in Massachusetts.  These exemption caps render any surplus value in a residence vulnerable to creditor claims.  In Florida, though, there is no limit on the value of real estate that can be protected as a homestead.

Florida Homestead Protection

Florida is unique in offering 100% homestead protection provided the real property meets the requirements of 1/2 acre within a municipality or not more than 160 acres outside of a municipality.

The unlimited Florida homestead exemption acts as a powerful shield, allowing the most valuable asset owned by most Florida homeowners to survive a bankruptcy filing and serve as a foundational asset for re-building wealth after discharge.

Defining a Florida Resident

To be a “homestead,” residential real estate in Florida must be owned by a Florida resident who uses the property as his or her primary residence. This means that one would need to be a Florida resident in order to claim a Florida homestead. A Florida resident is defined as someone who lives (is present) in Florida for at least 6 months and 1 day of the calendar year. The idea is that the person spends the “majority” of his/her time in Florida during the year.  And, critically, the owner of the property must be a “natural person.” A corporation, LLC, or irrevocable trust cannot claim homestead protection.

With an established Florida residency, the next question is how to determine a Florida homestead. From this question springs the subject of this article, of whether you can title your Florida homestead in a revocable living trust in Florida.

Advantages of Using a Living Trust

A living trust is set up while the grantor is still alive (hence, “living”) and frequently holds a substantial portion of the grantor’s assets.  In many cases, the grantor names him or herself as trustee and is also the trust’s beneficiary.  Within the instrument creating the trust, the grantor designates a successor trustee to take over administration upon the grantor’s death.  And the grantor leaves precise instructions as to how the successor trustee will eventually distribute the assets held in the trust.

Living trusts have become a popular estate-planning tool due to the flexibility and efficiency they offer when arranging distribution of assets.  Because they can accomplish many of the distribution objectives traditionally associated with wills, living trusts in Florida are often described as a “will substitute.”  It’s important to remember, though, that a living trust doesn’t necessarily have to be used instead of a will, as the two instruments can just as easily be used in conjunction—each complementing the other.

A well-constructed living trust allows the grantor more precise and enduring control over the disposition of trust assets than what can ordinarily be accomplished through a will.  The most commonly cited benefit, though, is that a living trust allows property within the trust to pass to beneficiaries outside of the probate process that applies to assets devised by will.  Because probate is quite-often a burdensome, expensive, and lengthy undertaking, probate avoidance is a significant advantage.

Reasons to Hold a Homestead in Florida Living Trust

Because a residence held in a living trust can still be a protected homestead, estate-planning homeowners frequently ask whether transferring a homestead into a living trust is in fact a wise idea.  As is so often the case, the answer depends upon the individual homeowner’s specific situation.

In general, you might want to hold a homesteaded property within a living trust because you get the benefits of both.  The property sidesteps probate because it passes to your heirs (i.e., the trust’s successor beneficiaries) through the trust.  If you want to place long-term limitations on how the residence can be used or transferred by beneficiaries, a living trust can be structured so that title to the property transfers into a more specialized trust after your death.  All the while, you continue enjoying the powerful asset-protection benefits of Florida’s homestead laws.

There are also plenty of individualized scenarios in which a living trust makes sense for a homestead.  For instance, let’s say a married couple, each of whom has adult children from a prior marriage, purchases a residential property they intend to use as a homestead for the rest of their lives.  By default, Florida law assumes that the property is owned by the couple as tenants by the entireties, which means that when one spouse dies, the other automatically takes full title to the real estate.  Then, when the second spouse passes away, the homestead descends to the second spouse’s heirs.

This scenario raises a potential problem if the spouse who died first wanted his or her children to inherit an interest in the property—because that won’t happen when real estate is held in tenancy by the entireties unless the second spouse bequeaths an interest to the stepchildren.  To avoid an unintentional (or intentional) disinheritance, the spouses could, during life, transfer the homestead into a living trust naming them both as beneficiaries.

Downsides to Holding a Homestead in a Living Trust

Conversely, there are similar scenarios in which it would make more sense not to transfer a homestead into a living trust.  In Florida, interests in a homesteaded property are “devise-restricted” if the owner is survived by a spouse or minor children. Instead of transferring via will, the interest descends according to statute.  The intricacies of how the statutory system of descent works in different situations gets a little complicated.  But the bottom line is that, when a homestead owner is married and has children from a prior relationship, both the surviving spouse and the children are assumed to receive an interest in the homestead.

But that might not be what you want to happen.  So, rather than a surviving spouse splitting a property interest with the decedent spouse’s children, you might prefer to keep things simple and own the property as tenants by the entireties.  Due to the “right of survivorship” inherent in tenancy by the entireties, whichever spouse lives longer automatically takes full title, and you don’t have to worry about the statutory distribution scheme.  Of course, the surviving spouse can still transfer the homestead into a living trust later so that the property descends outside probate.

Ideally, the couple will have made arrangements in advance— with the assistance of experienced estate-planning counsel—so that their mutual intentions for the homestead property are clearly spelled out in a writing that protects the interests of both spouses and their respective heirs.

Homesteads in Florida Probate

As mentioned above, one of the chief benefits of using a living trust is that it allows assets in the trust to avoid probate.  As it turns out, though, the Florida probate process for homesteads is usually relatively painless.  A property subject to homestead protection is not considered to be formally within a decedent’s probate estate because, as a homestead, it’s not subject to creditor claims.  Instead, the personal representative files a Petition for Determination of Homestead asking the probate court to find that the property qualifies as a homestead.  Once the finding is made, the property is transferred to the appropriate heirs, with the homestead protection intact.

There are some scenarios in which holding a homestead in a living trust could still make sense.  But, because of Florida’s expedited probate for homesteads, probate avoidance is less of a factor.  An experienced Florida estate-planning attorney can help you decide whether transferring your home into a living trust is a wise decision in your situation.

However, Florida courts have held that a primary residence held in a revocable living trust can be eligible for homestead protection.  If the beneficiary of a living trust could claim the exemption if his or her name were on the deed, the property is effectively a homestead.

Florida Court Decisions on Homestead

Florida Court Decisions About Revocable Living Trusts and Homestead Protection

Whether to Title a Florida Homestead in a Florida Living Trust Has Been Questioned Due to an Early by the Bankruptcy Court Ruling in this District.

Without diving into too much legalese, there was a decision by a bankruptcy court judge in a case called In re Bosonetto, Bk. Ct., M. Dist. Fla.   In that case, the judge found that because the homestead in that case was held by a trust and not a “natural person”, the homestead protection did not apply, and the court ruled that Florida’s Homestead Act does not protect a primary residence held within a living trust.  On this basis, the court allowed a creditor to force the sale of the home in order to pay debts.

That being the case, it is also also worth noting that the weight of legal authority holds that a homestead held in a living trust remains protected from creditor claims.  And, on this basis, 5 Florida courts (2 of which were bankruptcy judges) have opted NOT to follow that case, and have expressly determined that property held in a revocable living trust is exempt from forced sale under Florida homestead laws.  But it is possible, albeit unlikely, that the Florida Supreme Court could in the future decline to apply homestead protections to residential real estate held in a living trust.

For you legal researcher types, the cases to review are as follows:

Callava v. Feinberg
Engelke v. Estate of Engelke
In Re Alexander
In Re Edwards
Cutler v. Cutler

Making an Informed Decision

[Whether to Title your Homestead in a Revocable Trust]

The important thing to understand when making this decision, in light of the legal insight discussed in this article, are the pros and cons of titling your homestead in your revocable living trust.

Revocable Trust Titling ProsRevocable Trust Titling Cons
Avoid Probate Administration Florida Supreme Court Question
Flexible Distribution Plan Potential Decreased Asset Protection 

Summarizing the pros and cons, it is often very advantageous to title a Florida homestead in a revocable trust due to the major benefit of avoiding the Florida probate administration process in favor of a much simpler Florida trust administration. In addition, the flexibility of a revocable trust allows distribution planning options in the event of a special needs beneficiary in Florida OR if added protection is needed for IRA beneficiaries, estate planning in Florida for second marriages, and the list goes on.

However, when weighing pros and cons, those in high risk professions such as doctors OR contractors might consider opting to leave the homestead out of the revocable trust as an extra precaution as part of a coherent Florida asset protection plan.

Is there much of a chance that the Florida Supreme Court could overturn the decisions in favor of the Florida homestead and revocable trusts. It wouldn’t seem likely to this lawyer due to the court’s general understanding that a revocable trust is not really a separate entity from the trustmaker who is also the original owner of the homestead. Still, because we’re speculating, it is important to have all the facts and make an informed decision.

As a side note…you need to be sure to understand the difference between revocable and irrevocable trusts in Florida because homestead protection is NOT available for property in an irrevocable trust.

Another legal nugget…recent Florida legislation also allows a homestead to be afforded full protection if held in a Florida land trust.

Finally, it is very important to understand the spousal rules around the Florida homestead in order plan accordingly.

So, if your Florida homestead is not in your Florida revocable living trust you should have your Florida estate plan reviewed as part of a regular estate planning checkup by your favorite Florida estate planning attorney.

Steve Gibbs, Esq.

This is an updated version of a prior post published in 2015.  

55 comments… add one
  • Paul Novak May 17, 2018, 1:40 pm

    A great informative article. But it leaves me with a question. Can I place my newly purchased home that had a Florida homestead exemption into my revocable trust that I established in VT when I owned property there. If I place into my existing trust, will I lose my homestead exemption on my home in Florida?

    • gibbslawfl May 17, 2018, 2:06 pm

      Hi Paul, great question and we appreciate your interest. Hard to give legal advice in a blog comment without seeing the deed, etc. However in general the prior homestead in another state being deeded into a FL trust wouldn’t impact your current homestead in FL, though I suppose a county official could get a bit confused and you may need to address that issue. Let us know if we can help further. Best to you, Steve

  • George Finn October 2, 2018, 8:26 pm

    Here’s an argument in favor of the court treating a trust as a Non-Entity:
    Please tell me if it’s been tried.
    Florida citizens have been given a choice for disposing their estate after death.
    That choice is to use either a Will which is the vehicle for passing the estate through the Probate Administration, or you need to use a Revokable Trust as the vehicle to pass your estate through the Florida Probate Administration, A Trust, like a Will, it is simply a choice of vehicles for determining the future of assets.
    Like the Will, a Revocable Trust is a living document that can change daily according to the Testator/Grantor-Trustee. Like a Will, a Trust has no stand alone authority until the death of the Testator/Grantor-Trustee.
    How the Trust is categorized after that point, is anyone’s guess but until the Grantor totally disassociates himself from the management of the Trust it is neither a stand alone document nor a separate entity.
    George

    • gibbslawfl October 3, 2018, 5:25 pm

      Hello George,

      I appreciate you visiting and commenting and in general I like your analysis and believe it is correct. I can’t really say whether your approach has been tried because that is just “the way it is” commonly recognized. In other words, In my opinion, a Living Trust is not generally recognized as a stand alone entity apart from the Grantor (not separate from Grantor) until his/her death, at which time it becomes an independent entity with its own legal status, tax id, etc.

      During the Grantor’s life, the Living Trust operates like an alter ego to the Grantor, not requiring additional tax filings, etc. This is all standard operating procedure. Good luck in your endeavors.

      Best,

      Steve Gibbs, Esq.

  • Rob July 5, 2019, 12:11 pm

    Hi Steve,

    We are having some trouble getting Orange County, here in Orlando, to approve homestead exemption for our primary home due to the fact that it is in our Living Trust which “does not provide language that shows the applicant retains beneficial interest in equity to the real property placed in the trust.” We moved down here from MN and have never had trouble homesteading our primary home while in our Trust. Can we just make an addendum to the existing trust to satisfy Orange County’s wording requirements?
    Rob

    • gibbslawfl July 11, 2019, 11:22 am

      Hello Rob,

      Thanks for reading and inquiring. The short answer is that trust amendment could correct the problem with the homestead. However, the longer answer is that your trust may not be adequate in FL for other reasons to be discussed. Please feel free to reach out to Gene at admin@gibbslawFL.com to schedule a more detailed discussion.

      Best, Steve Gibbs, Esq.

  • Emily August 13, 2019, 2:51 am

    Hi Steve,
    My daughter and I are buying a condo in FL, and it will be her primary residence. My husband and I will continue to maintain our main residence out of state. My husband would also like to be added to the title, but we aren’t sure of the best way to maximize the homestead tax benefit. In order to claim the full homestead benefit, is it a good idea to have all three of us on the title and put it in a living, revocable trust with my daughter named as the beneficiary? If so, should this be done before closing?
    Thank you,
    Emily

    • gibbslawfl August 14, 2019, 3:52 pm

      Hi Emily, thanks for reading and for your question. For purposes of a blog comment, I can offer some general feedback. However, your concerns would be best addressed in an individual discussion to consider all options. In general, more than 1 person can be on a title and the person residing there can claim the FL homestead benefit. Putting multiple parties on title should only be done after considering the situation of each and considering things like each person’s legal exposure, age and planning needs. Joint titling can sometimes backfire for a number of reasons if things don’t happen as expected. Also, there are different ways to title such as joint with a right of survivorship or tenancy in common and each one carries some pros and cons.

      A revocable trust can also be used effectively; however, it sounds like your daughter is purchasing the condo along with you and your husband, so doing a trust with her as beneficiary may not work for her because it doesn’t really grant her a present ownership interest. Lady bird deeds can also be used for certain purposes and these are all topics you can access on the blog. Those are just a few parameters, and I invite you to schedule a discussion to dive into more specifics by e-mailing Gene Ross, our Legal Director, for a phone or video consultation.

      Best, Steve Gibbs, Esq.

  • David Adkins December 13, 2019, 3:20 pm

    Father passes away and had property in revocable trust. Now the property is in irrevocable trust. It was his homestead property. He was paying property taxes of 5000 a year. Now Volusia county is raising the property taxes to 12,700! They are saying since father passed away he loses his homestead and property get revalued at today’s prices. Is that right? Far Value went from 250,000. To 574,000 with no exemptions

    • gibbslawfl December 16, 2019, 2:17 pm

      Hello David, thanks for commenting. The homestead status keeps taxes within limits for primary owner. Since your father passed, the reassessment can happen. You can certainly contest it and may need a real estate lawyer there to do so.

      Best,

      Steve Gibbs, Esq.

  • Annette Adams January 23, 2020, 11:01 pm

    My lawyer is doing a quit claim deed on my Fl property in order to put it in a revocable trust in Tn where I live part of the time. To avoid Fl probate. The Fl residency will go to my son at my death. Is there no way to keep the homestead exemption going when the house belongs to him? I understand from what I read in your comments that I will still keep the exemption as long as I put it into a living trust? Thank you

    • gibbslawfl January 23, 2020, 11:26 pm

      Hello Annette, thanks for reading. If I understand your question, yes you can put your homestead in your trust and retain the homestead for yourself living there if it is your primary residence. I’m assuming you’re not married as this would be an important factor in your decision concerning it passing to your son.

      Best to you.

      Steve Gibbs, Esq.

  • Annette Adams January 28, 2020, 11:51 pm

    Thank you. You answered my question very well.

  • Jaime February 5, 2020, 8:25 pm

    Can a non grantor beneficiary, that has a life estate interest under the terms of a revocable trust (grantor still living), take advantage of a homestead exemption while she lives on the property?

    • gibbslawfl February 6, 2020, 5:25 pm

      Hello Jaime, thanks for your question. There are a lot of facts in there that lead to more questions. However, the general rule is that a life tenant can get homestead status. So the other questions relate to the trust, whether she has a vested interest and how to present it to local authorities. Let us know if we can help by connecting with Gene at admin@gibbslawfl.com.

      Best,

      Steve Gibbs, Esq.

  • Michele P April 6, 2020, 9:21 am

    Hello, my husband and I are purchasing a home in florida, but are Nj residents . We are not sure if we can homestead yet due to the 6 month and a day. In order to do the lady bird deed, do we have to be florida homesteaders. Thank you.

    • gibbslawfl April 6, 2020, 10:31 am

      Hello Michele, Thanks for reading. You don’t have to be FL homesteaders to do a lady bird deed for FL real estate. We can prepare these and send to you also so let Gene know if you’d like this done at admin@gibbslawfl.com.

      Best, Steve Gibbs, Esq.

  • Geri May 3, 2020, 6:12 pm

    My husband and I are residents of Florida and own our own home. This is our second marriage and we both have children from first marriage. What do we need to do to insure that each family will share equally in the property after the second spouse dies. Thank you.

    • gibbslawfl May 4, 2020, 10:37 am

      Hello Geri, thanks for your interest and commenting. We do a fair amount of trust planning for folks with second marriages and there are some questions to consider in a confidential discussion. In general, joint or separate trusts can be used and provisions can be drafted to assure that respective kids from prior marriages are provided for. The next step would be a consultation. Feel free to connect with Gene at admin@gibbslawfl.com to schedule or call our office 239-415-7495.

      Best, Steve Gibbs, Esq.

  • Dolores Turnwall June 2, 2020, 2:25 pm

    Thank you….. very informative , well written , and understandable, even for a layperson like me.

    • gibbslawfl June 4, 2020, 3:42 pm

      Thanks you Dolores, always nice to get great feedback.

      Best, Steve Gibbs, Esq.

  • Miriam June 29, 2020, 5:57 pm

    Hello,
    I am planning to put my son on my homestead exemption Florida home in a revocable living trust. My question is after I do this procedure if in the future I want to sell my home, can I just sell it by my self or do I need my sons signature to sell my property.?
    I appreciate your response

    Thank you
    Miriam

    • gibbslawfl June 30, 2020, 3:36 pm

      Hi Miriam, that’s an approach I generally do not recommend. Yes, once you put someone’s name on your real property you would need his/her permission to sell. A better way is to title the homestead in a “lady bird deed” or a revocable living trust. You can get more information by searching both of these options on the website at https://www.gibbslawfl.com/blog. Let us know if we can help by connecting with Gene at admin@gibbslawfl.com.

  • Frauke June 30, 2020, 6:43 pm

    Hi, While living in CA, my husband and I purchased a Condo in FL in 2018 and placed into our CA revocable trust. As of Jan 1, 2020 the condo in FL is our primary residence and we applied for homestead exemption. We were denied because our CA trust does not correspond to FL law. How can we solve this problem? By amending our CA trust? By creating a new trust based on FL law? Which option is most economical? Which is the fastest? I would appreciate a response.

    • gibbslawfl July 1, 2020, 3:11 pm

      Hello and thanks for your comment. The solution to your problem would be to do a Florida restatement to your CA trust. This would include your FL homestead language and a number of other important provisions. Technically, this would be an amendment and restatement and it would be about the same as a new trust in terms of costs but more effective in terms of assets titled in the trust because no retitling would be needed.

      Let us know if we can help with this by connecting with our Legal Director Gene Ross at admin@gibbslawfl.com.

      Best, Steve Gibbs, Esq.

  • GLENDA ENNIS July 7, 2020, 1:42 pm

    HOW DO I PUT MY DISABLED SON ON MY MOBILE HOME DEED, I OWN THE PROPERTY ALSO. THIS IS IN DUVAL COUNTY FLORIDA 32258. WOULD HE BE ABLE TO RECEIVE HOMESTEAD
    .

    • gibbslawfl July 7, 2020, 2:56 pm

      Hello Glenda, I do not recommend you add your disabled son to your deed because there may be better options for him such as using a lady bird deed or special needs trust depending upon a number of important factors. I highly recommend you seek a Florida legal opinion from an experienced expert. Let us know if we can help by connecting with Gene at admin@gibbslawfl.com.

  • CAROL W OVERACKER November 6, 2020, 11:16 am

    I understand that you can put your homestead in a revocable trust and maintain the homestead protection against creditors for the Grantor. My question is if, at the Grantor’s death, the decedent’s homestead property is to be distributed to the deceased Grantor’s adult son, does the creditor protection “inure” to that adult son beneficiary? Assume deceased Grantor did not have a surviving spouse or minor child. I know that the creditor protection would inure to the adult son under intestacy and through devise under a will, I just want to know if having it titled under the Trust changes anything.
    Thank you!

    • gibbslawfl November 9, 2020, 3:04 pm

      Hello Carol, thanks for your question. My experience the trust wouldn’t have an impact; however, whether your son intends to homestead the real property may. The nature of the creditors may also have an impact such as unpaid child support or IRS liens. Anyhow, you may need a professional consultation on this to explore those questions.

      Best, Steve Gibbs, Esq.

  • Bhavya Trivedi November 29, 2020, 11:02 am

    I have a question regarding homestead exemption.
    We have refinanced our house (primary residence) and transferred it to a Living Revocable Trust which was established in FL.
    We received a letter from OC Property Appraiser regarding filing for Homestead Exemption and portability.
    I know that we can do Homestead Exemption with Trust ownership of the property. However, should we/can we apply the Portability benefit?
    Thank you!

    • gibbslawfl December 1, 2020, 4:50 pm

      Hello and thanks for your question. Generally, the portability should still be available; however, there may be other reasons to take your homestead out of trust due to Safeharbor Updates in Florida, and issues with keeping jointly held homestead real property in trust. Let us know if we can help by connecting at info@gibbslawfl.com.

      Best, Steve Gibbs, Esq.

  • Linanne December 16, 2020, 10:50 pm

    I am purchasing a home in Pasco County, Florida to be deeded in my Revocable Trust which was created in New York. My two daughters are beneficiaries to this trust, I am widowed and plan on living in this home as my primary residence with one of my daughters and her family. She will pay all of the utilities, taxes, and hoa fees and in 5 years she plans on buying the house from the Revocable Trust. Is there a way preserve the homestead exemption for her?

    • gibbslawfl January 12, 2021, 4:21 pm

      Hello and thanks for commenting, you situation would require a consultation and to schedule just e-mail Gene at info@gibbslawfl.com. Probably an restatement of your New York trust will be advisable and you could include something in the trust to protect your daughter’s interest.

      Best, Steve Gibbs, Esq.

  • Paula kolb January 11, 2021, 9:40 am

    Question? A mother has a living will set up. She owns the property as long as she is alive. She has had one of her children added to the title of her property for after she dies, if that child dies before her and the will states no changes can be made while she’s alive. Do the heirs of that child have any claim?

    • gibbslawfl January 12, 2021, 4:28 pm

      Hello Paula, I’m not sure I understand your question and think you may mean “living trust” as opposed to living will. A review of the trust would likely need to be done before offering any advice concerning the heirs.

      Best, Steve Gibbs, Esq.

  • Donna January 14, 2021, 3:07 pm

    Hi Steve,
    My parents own a home in Fort Myers free and clear. Both were on the deed; my dad has passed. They have a revocable trust but the house is not in it. From what I have read from your excellent article above, she will retain homestead status even putting in the revocable trust. As her executor, what do I need to do to add the house to the trust and does my mother need to first take my dad’s name off of the deed?
    Thank you!
    Donna

    • gibbslawfl January 25, 2021, 1:14 pm

      Hello Donna, thanks for connecting. At this point in your parents’ process, I usually do recommend that the house either goes in the trust or a lady bird deed is prepared to pass it directly to beneficiaries. We can prepare a deed for you in either case. To start that process, connect with Gene at info@gibbslawfl.com.

      Best, Steve Gibbs, Esq.

  • Donna Dunagan January 15, 2021, 10:33 am

    Thank you for all the great information in this article. What steps do I take to put my mother’s house in a trust? My dad and she held the deed/title jointly and he has passed. Does she first need to change it into just her name?
    Thank you!

    • gibbslawfl January 25, 2021, 1:21 pm

      You’re most welcome Donna. A proper deed to trust would need to be prepared and recorded. I recommend you have this done by an expert to preserve homestead and trustee powers, etc. Let us know if we can help.

      Best, Steve Gibbs, Esq.

  • Jim March 4, 2021, 7:16 am

    Hi Steve,
    Thank you for taking the time to explain the many areas of the homestead and the revocable living trust. My Aunt recently passed and has a revocable living trust and her homestead condo is to be left to myself and my cousin. The owner of the condo is the trust with the homestead. my Aunt had private home care 24 hrs every day and owes the home healthcare company 8000 dollars. She had to be sent to a nursing home as she ran out of money. There is no money at all in her estate as she went through it all with the private home healthcare company. Can the private home healthcare company go after the condo that is in a trust? Or can the home healthcare company make my cousin and I have to pay for it? Thank you for your help, Jim

    • gibbslawfl March 11, 2021, 10:33 am

      Hello Jim, I usually tell people that anyone can go after anyone for anything. Whether they will be successful is another matter. The rule of thumb in general on homestead is that a creditor can attach a lien in FL yet cannot force a sale. However, if the real property is sold they may collect. Other than that, without more facts it doesn’t appear that they could collect against you or your cousin. Further discussions are needed if you want legal advice as this is all general information for educational purposes only.

      Best, Steve Gibbs, Esq.

  • Mark April 12, 2021, 5:56 pm

    Hi, I just retired and have created a revocable trust. I will be placing my homesteaded villa in Lake Worth (primary residence) into the trust. The quitclaim deed my attorney prepared states: “This deed was prepared without the benefit of title insurance.” When I bought the villa in 2019, title insurance was included (seller paid $700). So I am confused. Does this mean I do or do not have title insurance on my home? If not, do I need to buy a new title policy before transferring the deed into the trust? Also, does placing my home in trust in any way jeopardize my homestead tax exemption? Thanks for your input.

    • gibbslawfl April 17, 2021, 5:52 pm

      Hello Mark, the deed to trust wouldn’t necessarily have an impact or relationship to title insurance. This question would be better posed to your attorney; however, the original deed should have covered the title insurance issue. A deed to a revocable trust isn’t actually transferring title and thus title insurance isn’t needed. That said, you will want to be sure that putting the home in trust is the right move is you’re married however and this would warrant a consultation, since on educational information and not legal advice is the objective with blog post discussions. Let us know if we can help further by connecting with Gene at info@gibbslawfl.com.

      Best, Steve Gibbs, Esq.

  • Diane McAuley April 15, 2021, 1:26 pm

    My husband and I created our trust using the Suze Orman program while living in CA. The trust is governed by the laws of CA. We recently moved from Ca to FL purchased a home and homesteaded. (Home is in the name of the trust) I am being advised that the trust would be valid in any state as long as we restate it using our FL address and properly executing all documents. I was quoted the following:
    Why Does The Trust Reference California Law?
    The laws of the state of California will govern the trust document that you create under the Ultimate Protection Portfolio. Many people ask why we do this and why this is legal. The reason that we do this is that California law is a very modern and user-friendly law in the area of trusts. In my opinion, the laws of California are more favorable to the consumer than those of any other state.The reason that your trust is valid in your home state, even though it’s governed by California law, is found in section 268(1) of the Restatement of the Law Second, Conflict Laws, (St. Paul, Minn.: American Law Institute Publishers, 1969) which states: “As with testamentary trusts, a settlor may designate which state’s local law will govern construction of the terms of the trust regardless of whether or not the designated state has any connection with the trust.”

    We have one child and want to make it as easy as possible when we are both gone. Any advise you can provide would be appreciated. I prefer not to spend money on lawyer fees if what we have will work in FL. unless it is prudent to do so.
    Thank you,
    Diane

    • gibbslawfl April 17, 2021, 6:03 pm

      Hello Diane, I’m not a fan of Suze Orman trusts or other non-attorney assisted self help trust program for the same reason that I don’t work on my own vehicles; despite a belief that I may be able to figure it out:) There is simply too much to know when drafting these documents and the cost savings honestly isn’t worth it due to the huge cost of correcting a bad trust or other related problems that can occur. The excerpt about about conflicts of laws appears to be a bizarre sales pitch as every trust is state specific albeit they are a valid and enforceable state to state. That said, concerning your CA trust moving to Florida, you should do a full Florida restatement which is essentially a new FL trust to rewrite the CA trust. We do this regularly for client’s across the country who are permanently relocating to FL.

      Let us know if we can help by connecting with Gene at info@gibbslawfl.com.

      Best, Steve Gibbs, Esq.

  • melvin wees June 20, 2021, 10:37 am

    My wife and I both have revocable living trusts and we live in Pennsylvania. We plan to move to Florida and be permanent residents. Do we have to change our trusts , or will they still good as written in Pa. ?

    • gibbslawfl June 21, 2021, 2:47 pm

      Hi Melvin and thanks for your comment. Generally, it is recommended to have your documents updated to your new home state if you relocate. Although your PA trust may be valid in Florida, you could be missing critical provisions. For example homestead and pre-Medicaid planning provisions are very common in Florida vs. other states. Also, your powers of attorney and medical documents are very state specific. Another note, from your question it appears you may have 2 trusts. These days, 2 trusts is a red flag in my opinion because it isn’t needed under current estate tax laws and often leads to unnecessary estate complications. Let us know if you would like to schedule a complimentary 15 minute discussion or you can do this on our home page at http://www.gibbslawFL.com.

      Best, Steve Gibbs, Esq.

  • Kester Hullett July 11, 2021, 12:06 pm

    My parents want to devise their homestead equally to their four adult children to sell after their death. And divide the proceeds. The house is worth about 550k. Is a living trust better than a will? They have no creditors. They are in their 80s and are just now making their wills.

    • gibbslawfl July 12, 2021, 11:25 am

      Hello Kester and thanks for your comment. The short answer is that often a trust is superior due to the flexibility vs. an outright distribution to adult children. For example, the trust is flexible to accomodate issues faced by the adult children such as divorces, disability assistance (i.e. Medicaid/SSI) or bankruptcy. However, in the case of a married couple, joint titling of a homestead residence is often better due to homestead laws until 1 spouse passes in which case the trust becomes preferable. A lady bird deed could also be used but is also less flexible and more difficult to change than a revocable trust. There are also pre-Medicaid planning decisions to make in many estate planning cases.

      Let us know if we can assist your folks with proper planning.

      Best, Steve Gibbs, Esq.

  • James M Hendrix July 11, 2021, 8:05 pm

    Wife and I are both on our second marriage with adult children from both sides. Question is we have one child that is to be excluded from any assets. Our primary assets are the homestead and IRA. What would be the best method to handle our estate

    • gibbslawfl July 12, 2021, 11:26 am

      Hello James, if those are your only assets, you may be able to get by with properly titling your IRA beneficiary designation AND using a lady bird deed for the homestead. However, a trust may be useful if other circumstances are present.

      Let us know if you’d like to schedule a consultation.

      Best, Steve Gibbs, Esq.

  • Mona Friedman July 19, 2021, 6:30 pm

    Do the provisions of a life estate that is in a Florida revocable trust survive after the property has been transferred out of the trust?

    • gibbslawfl July 27, 2021, 6:45 pm

      Hello Mona and thank you for commenting. Without looking at the deed and trust this is impossible to answer due to my lack of understanding of what the trust says about the property and likewise for the deed itself. A consultation and review of those documents would be required to fully answer your question.

      Best,

  • Dee T August 31, 2021, 2:23 am

    My husbands parents have him listed as the beneficiary, of a property in Florida, through a ‘Revocable Trust”. However, they did a quit claim deed to the trust in 2009, but the property shows in his name (not the trust) and we have been paying all property taxes, insurance, and claiming homestead for 12 years. Since it is a ‘Revocable Trust” and they can change it or take it away at any time … What rights do we have if we do improvements to the home? If we do a complete renovation, can they then take it and leave us stuck with the bill?

    • gibbslawfl August 31, 2021, 2:28 pm

      Hello Dee, in order to truly answer your question, we would need to have a look at the current deed/s and possibly the trust. Otherwise I would just be speculating. Let us know if we can help further.

      Best, Steve Gibbs, Esq.

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