You may have signed a Last Will and Testament believing the family home would pass smoothly to your spouse or children. Perhaps your daughter knows where the paperwork is, and you have discussed who should inherit. Those conversations matter, but the documents and the name on the deed determine what your family will need to do after your death.
A will alone does not avoid probate in Florida when the home remains titled in the owner’s individual name. A properly funded revocable living trust or suitable ownership arrangement can help, but the plan must also account for Florida’s homestead protections and your family’s needs.
A Will Does Not Change Who Owns Your Home
A will identifies who should inherit your property and nominates someone to administer your estate. It can also nominate guardians for minor children. What it does not do is change ownership of your home during your lifetime.
If the home remains titled in your individual name, some court involvement could be necessary after your death. A Florida home that qualifies as protected homestead receives special treatment because title can pass directly to qualifying family members. Even so, a court order is often needed to confirm its homestead status and establish clear title.
Creating a pour-over will does not avoid that process. Although it directs remaining probate assets into a trust, those assets must generally pass through probate before reaching the trust.
A Trust Must Own the Home
A revocable living trust can keep the home out of probate, but signing the trust agreement is not enough. The home must become a trust asset during your lifetime.
That normally requires a deed transferring title to the trustee. The deed must be signed in the presence of two witnesses and properly notarized before it is recorded in the county’s public records. If the transfer is completed, the successor trustee can manage the home after your death without obtaining a probate appointment. If the deed is never completed, the home can remain outside the trust and require court involvement.
Your Spouse’s and Children’s Rights Still Matter
Transferring a home to a revocable trust does not override Florida’s homestead restrictions. Under Florida Statutes § 732.4015, an owner who is survived by a spouse or minor child generally cannot leave the homestead to anyone they choose. If the owner has a spouse but no minor child, the home can generally be left to the spouse.
If the homestead is not transferred as Florida law permits and the owner leaves a spouse and descendants, Florida Statutes § 732.401 generally gives the spouse a life estate and the descendants the remainder. The spouse can instead elect an undivided one-half interest as a tenant in common. That election ordinarily must be made within six months after the owner’s death and during the spouse’s lifetime.
A spouse can waive homestead rights through a properly executed written agreement or waiver. This possibility is especially important in second marriages when each spouse intends to leave property to children from an earlier relationship.
Could the Deed Provide Another Option?
Because the deed controls present ownership, it can sometimes offer another way to avoid probate. Married couples often own Florida homes as tenants by the entirety, which allows the surviving spouse to receive full ownership after the first spouse dies. A separate plan is still needed for the survivor’s death.
An enhanced life estate deed, commonly called a Lady Bird deed, can also transfer a home at death while allowing the owner to retain control during life. Whether it is appropriate depends on the owner’s family circumstances and Florida homestead rights. Simply adding a child as a current co-owner is different because it gives the child immediate rights and can create creditor, tax, or sale complications.
Start With the Deed You Have
The right plan begins with confirming how the home is currently titled, who should receive it, and which family members may have protected rights. Only then can you determine whether the existing will, trust, or deed accomplishes what you intend.
Barash-Schatten Law can review the deed alongside your will or trust and explain what your family would face under the current plan. Contact Barash-Schatten Law to discuss how you want the home to pass.
