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Homesteads and Trusts Explained

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Managing your assets while you’re alive and distributing them after your death are important steps to establishing financial family security. Creating a revocable trust is one way of doing so, and many people choose this option because you can change or cancel its provisions at anytime before you pass. With a revocable trust, you also ensure that a court doesn’t manage how your assets are distributed after death.

If a spouse or a minor child survives you, keep in mind that Florida law prohibits the devise of a homestead property, including ‘gifting’ through a will or ‘transferring’ through a revocable trust. To put it simply, if you have a surviving spouse or a minor child, Florida prohibits you from gifting or transferring your property after you die.

The Florida Constitution states that, “The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child.” This can especially impact people who have been married multiple times and established long-held trusts.

Luckily, you can work around the Florida law and its homestead property restrictions. One way of doing so is setting up an irrevocable trust. Florida law states that if a homeowner commits his or her interest in a homestead property to an irrevocable trust and surrenders the power to revoke it, a court won’t consider the transfer of it a devise and it’ll respect the its disposition as directed by the trust.

Although irrevocable trusts aren’t as flexible as revocable trusts, Florida law still provides homeowners with some features of flexibility when planning one.

With an irrevocable trust, a homeowner can:

  • Retain a lifetime interest or a term of years.
  • Delay the possession of the homestead property until a specific date.
  • Subject the interest to a lapse or a divestment.

For more information about homestead properties and the different types of trust planning, contact our real estate team today to alleviate your worries and stress.

Stephen K. Hachey can help you wade through this difficult process to reach a positive solution. Call 866-200-4646 today!

***The opinions in this blog are those of the author whom takes full responsibility for the content. Like all other content on the site, this does not constitute legal advice and is for general information purposes only.***