It’s common for Florida parents to place their home into a revocable trust to “avoid probate.” Unfortunately, when that home is their Florida homestead and they have minor children, doing so can actually create more problems than it solves.
Florida’s Constitution gives strong protections to the family home, and those protections can override even the best-drafted trust. Parents who deed their homestead into a trust before their children reach adulthood may leave their family in a complicated legal situation when both parents pass.
The Florida Constitutional Rule That Overrides Your Trust
Under Article X, Section 4 of the Florida Constitution, a homestead cannot be devised (left by will or trust) if the owner is survived by a spouse or minor child.
That means even if your home is titled in a revocable trust, the trust cannot control it if a minor child survives you. The home immediately falls outside the trust’s control and instead passes according to Florida’s homestead laws.
This restriction exists to protect families — but it can also derail well-intentioned estate planning.
The Complicated Process That Follows
When both parents pass and a minor child survives, a Petition to Determine Homestead Status must still be filed in probate court, even though the home was in the trust.
Here’s what typically happens:
- A probate proceeding must be opened.A petition is filed to determine that the home qualifies as protected homestead.
- The petition can’t be finalized right away.The court usually delays the final order until after the 90-day creditor period ends, because all interested parties must first have a chance to be notified.
- Someone must maintain the home in the meantime.The trustee or surviving family members usually continue paying the insurance, taxes, and upkeep, even though the trustee has no authority to sell or distribute the property.
- When the order is finally entered, title passes directly to the heirs.If a minor child is among them, the court may require a guardianship of the property until the child turns 18.
This process can take months — sometimes longer — and often causes confusion because the home appears to belong to the trust on paper, but the trustee can’t actually manage it.
Why the Trustee’s Hands Are Tied
Once a Florida homestead passes to a surviving minor child, the trustee’s authority ends at the front door.
The trustee cannot:
- Sell the property
- Use it to pay estate debts
- Follow the trust’s distribution terms
The Constitution prohibits it. Even if the trust language says otherwise, Florida law wins every time.
The Real-World Impact on the Family
Families are often caught off guard by this situation. While the intention was to “make things easier,” what actually happens is:
- A probate must still be opened to determine homestead.
- The trust can’t manage or sell the home, even for the child’s benefit.
- A guardianship may be required, adding more cost and oversight.
- Estate administration becomes more complicated, not less.
In short, what was supposed to avoid probate ends up creating more of it.
A Better Way to Plan for Minor Children
Parents with minor children can still plan effectively — just differently. Consider these options:
- Wait to deed the home into the trust until your youngest child turns 18.
- Keep the home in your individual names and use your will to express your intent for the homestead to be transferred to the trust after the children reach adulthood.
- Review your plan regularly as your children grow, so it can be updated once the homestead restrictions no longer apply.
By waiting, you avoid the risk of the trust being overridden and protect your family from unnecessary court involvement.
The Bottom Line
Florida’s homestead protections are powerful — and inflexible. Once a minor child is involved, the Constitution, not your trust, decides what happens to your home.
If you currently have minor children and your home is titled in your revocable trust, this is an important time to revisit your plan.
Talk to a Local Attorney Who Understands Florida Homestead Law
Every family’s situation is different, but one thing is certain: placing a Florida homestead into a trust while you still have minor children is rarely a good idea.
If you’d like to review your estate plan or correct an existing deed, contact Bart Scovill, PLC, serving Sarasota, Lakewood Ranch, Bradenton, and Venice. https://scovills.com/?p=3318
No comments:
Post a Comment