Homestead in Joint Revocable Trust – Subsequent Death of a Spouse
Homestead in Joint Revocable Trust – Married Couple’s Conveyance of Homestead into a joint Revocable Trust – It is common for a married couple to convey their homestead property to themselves as trustees of their joint revocable trust. After the death of the first spouse, an issue arises as to whether that deceased spouse’s lineal heirs have an interest in the property under Florida’s homestead laws. Will a probate of the deceased spouse be required, and thereafter, conveyance by the decedent’s lineal heirs? Or, will the conveyance by only the surviving spouse individually and as trustee be sufficient?
Florida Homestead in Joint Revocable Trust
Statutory Written Waiver of Homestead – A spouse’s homestead rights may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses. § 732.702, Fla. Stat. The homestead property conveyed by both spouses to themselves as co-trustees of their joint revocable trust, which trust is signed with the formalities of a deed, shall constitute a valid written waiver of homestead rights with respect to inheritance (devise and descent) of homestead property. So long as the deceased settlor/spouse is not survived by a minor child, no probate proceedings will be required for the first spouse dying. A customary Certification of Trust signed by the surviving spouse should be recorded, stating the name of the deceased spouse, and that the decedent was not survived by a minor child. Then, conveyance by the surviving spouse individually and as trustee is sufficient; neither joinder of lineal descendants, if any, nor probate of the deceased settlor/spouse will be required.
Homestead in Joint Revocable Trust – Surviving Minor Child
Surviving Minor Child of Decedent Negates the Written Waiver of Homestead – if the conveyance of homestead property to the joint trust of the spouses will not be deemed to be a valid written waiver of homestead rights of a decedent’s surviving minor child. Deeds are required from the surviving spouse (individually and as trustee) and any lineal descendants entitled to inherit the homestead property, if the deceased settlor/spouse is survived by a minor child. A determination of the identity of the spouse and lineal descendants will be necessary.
This determination can be established by recording a Certification of Trust (which includes names and relationship of the decedent’s heirs), for transactions under $1,000,000.00. If the transaction is $1,000,000.00 or higher, proper probate proceedings will be necessary to establish the identity of the spouse and lineal descendants. Conveyance by the surviving spouse, individually and as trustee, together with conveyance by the lineal descendants entitled to inherit the homestead property will be required.
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