Florida Estate Planning Lawyer BlogAdding names to the ownership of your home normally does not change your $25,000 Homestead Exemption, BUT you may lose all or part of the protection your property receives from the Save Our Homes (SOH) assessment limitation or “cap”. The SOH cap keeps the assessed value of your home from increasing more than 3% per year as long as you maintain your Homestead Exemption. A loss of protection from the SOH cap will increase the amount of property taxes you pay.
Articles Posted in Homestead
Will I lose my Save Our Homes Cap if I add someone to my deed?
Maybe, depending on how you own the property (the “tenancy”), and if the new owner files for Homestead Exemption on your property. “Tenancy” is the term used to describe the way property is owned, the relationship between the owners, and what happens to the property when an owner dies. The most common forms of tenancy are: tenancy by the entireties, joint tenants with right of survivorship, and tenants in common. If two or more people own property with a homestead exemption, the type of tenancy that appears on the deed can have an effect on the “Save Our Homes” provision, and ultimately the amount of taxes that are owed.
If the new owner is your spouse, or someone who is legally or naturally dependent on you, he or she must apply for homestead exemption. Your current Save Our Homes cap will not be adjusted.
Joint Tenants with Right of Survivorship:
If the new owner is a joint tenant with right of survivorship, and he or she DOES NOT apply for Homestead Exemption, your SOH cap WILL NOT be adjusted.
Can I “undo” or cancel a deed that is already recorded?
In Florida, if the wording of your current deed has consequences that you did not intend, you may want to consider a corrective deed. Please consult an Florida Estate Planning Lawyer , title company or other real estate professional to help you prepare your corrective deed. The Property Appraiser’s office cannot advise you, since there are many serious considerations that go beyond how homestead exemption is calculated, including income and estate tax consequences. We recommend that you never attempt to change your deed without the help of a Florida Lawyer
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How to trandfer property and keep your Homestead Exemption and SOH Intact
Are there other ways of transferring my property for estate planning that will not disturb my Homestead Exemption or SOH Cap?
Two methods of transferring your property will, in most cases, keep your Homestead Exemption and SOH intact: reserve a Life Estate for yourself or transfer your property to your trust. Please consult your attorney or estate planning professional before attempting either option.
If you transfer your property to a trust, your attorney should know that three criteria are required in order for your Homestead Exemption and SOH cap to remain intact:
Second Marriages: Estate Planning and More
When considering getting married for the second time, or to someone with a prior family it is important to consider Estate Planning, Long-Term Care, the family home, Social Security, Alimony, Survivor’s Annuities, and College Financial aid as an article on Forbes has reported.
Florida Estate Planning becomes very important when there are children from outside the current marriage. A spouse in Florida is entitled to a 30% share of all assets unless there is a prenuptial or post nuptial waiver.
in addition aFlorida Revocable Trust or prenuptial agreement might not keep a spouse from being responsible for long-term care and can have an effect on Florida Medicaid Planning and Eligibility
Florida Unrecorded deeds and Estate Planning
Normally a Florida Estate Planning Lawyer would advise against signing a deed conveying a home or other property without recording the deed.
What happens if a Florida deed or Florida Enhanced Life Estate Deed is signed but unrecorded?
Is the deed valid?
Florida Probate FAQ by Florida Bar
The Florida Bar has released consumer information on Florida Probate where they describe many of the issues related to Probate in Florida. They discuss the following:
1. WHAT IS PROBATE?
2. WHAT ARE PROBATE ASSETS?
3. WHY IS PROBATE NECESSARY?
Waiving Your Homestead Protection: Florida Supreme Court Speaks
While credit is tight and many Jacksonville consumers are facing foreclosure on their homes, and attempts to collect old credit card debts, companies have been trying to use waiver of you homestead to collect debts. For over 100 years Jacksonville residents and those living in Florida have had been able to protect their home from claims of creditors. Arguably the home is one of the most valuable assets a Florida resident has. Recently there has been concern over the ability of a homeowner to waive their right to protection. The Florida courts have allowed people to waive many of their constitutionally protected rights, but up to now a waiver of ones Florida homestead protection was invalid except in the case of a valid pre or post nuptial agreement. This case represented the most recent attempt to allow waiver of ones constitutionally protected homestead protection.
In a case involving the Florida Constitution’s exemption which protects homeowners’ residences from forced sale, the Supreme Court of Florida reaffirms that, while the exemption can be waived in a mortgage, it cannot be waived in an unsecured agreement. The court rejects claims that it should recede from its precedent based on a constitutional amendment, a purported national trend approving such waivers, and recent holdings that other constitutional rights can be waived.
To review the case and the extensive analysis the Florida Supreme Court took read Chames v. Demayo
Do it yourself Estate Planning: Bad News Part 3
A Florida Probate Lawyer Long Duong is reporting a mistake a client of his made with a modification to a Florida Will. The document was not properly executed and it was held to be invalid. This mistake cost the intended beneficiaries over $75,000.
Some other examples of Do it your self wills and bad news are covered in my articles listed below
Do it Yourself Wills? More bad news and Do it Yourself Wills? a Good Idea or Not?
Recently I saw a Florida Probate case, where a mistake was made in a will that changed a homestead to non-homestead property. Luckily there were no creditors, but in the even that there were creditors, the home could have been lost because of this mistake.
Spousal / Elective Share: Constitutional or Not?
Often in the process of Florida Estate Planning, Florida Elder Law, or Florida Probate I get asked about the effects of Florida’s Spousal Share Statutes. The statutes reserve 30 % of the decedents estate for a spouse in the event that the decedent did not provide at least that amount in their will or other Florida Estate Planning Documents. This right can be waived by the spouse in pre or post nuptial documents. Often for wealthy clients, or those who are legally separated but not divorced the spousal share can become a big issue. If you think that a spousal share might be an issue with your estate planning, you should discuss it with a Florida Estate Planning Lawyer.
Last week a Florida Appeals Court looked at, Whether Florida’s Spousal Share Statutes were constitutional or not?
Generally Florida Statutes are constitutional unless they are not rationally related to furthering a valid governmental objective. Lane v. Chiles, 698, So.2d 260, 262 (Fla 1997) In this case the court looked at whether the potential loss of property rights were rationally related to providing a share in the assets of the decedent.