Homestead Property Not An Asset of Probate Estate Unless Clearly Specified In the Will
In Clifton v. Clifton, 553 So. 2d 192, 194 n.3 (Fla. 5th DCA 1989), the Court held that "homestead property, whether devised or not, passes outside of the probate estate.
Personal representatives have no jurisdiction over nor title to homestead, and it is not an asset of the testatory estate." See also Cavanaugh v. Cavanaugh, 542 So. 2d 1345, 1352 (Fla. 1st DCA 1989) (holding that the transfer of probate jurisdiction to the circuit court did not change the law that the homestead is not an asset of the probate estate); Leslie A. Jeffries, Redfearn: Wills and Administration in Florida 18-1; 18-8; 18-10 (6th ed. 1986).
It is only when the testator specifies in the will that the homestead is to be sold and the proceeds are to be divided that the homestead loses its "protected" status. See Knadle v. Estate of Knadle, 686 So. 2d 631, 632 (Fla. 1st DCA 1996).
In Knadle v. Estate of Knadle, 686 So. 2d 631, 632 (Fla. 1st DCA 1996), the decedent's will provided:
My Personal Representative shall sell my homestead as soon as reasonably practical and the net proceeds thereof shall be added to the residue of my estate.
Within 90 days after my death, all occupants of my home shall vacate the premises with all their belongings.
The home shall remain vacant until sold.
My personal Representative in his sole and absolute discretion shall make necessary repairs and improvements to the house to best market the home.
Thus, where the will directs that the homestead be sold and the proceeds added to the estate, those proceeds are applied to satisfy the specific, general, and residual devises, in that order.
See also Elmowitz v. Estate of Zimmerman, 647 So. 2d 1064 (Fla. 3d DCA 1994); Estate of Price v. West Florida Hosp., Inc., 513 So. 2d 767 (Fla. 1st DCA) (holding that where testator directed in her will that her homestead be sold and the proceeds divided between her adult children, the proceeds lost their homestead character and became subject to the claims of creditors), cause dismissed, 518 So. 2d 1274 (Fla. 1987); cf. In re Estate of Tudhope, 595 So. 2d 312 (Fla. 2d DCA 1992) (finding that because the homestead estate was not converted to dollars before it passed and vested in the decedent's children as in Estate of Price, the proceeds could not be reached by creditors).
In fact, the Second District has stated that "the best, and perhaps the only, recognized exception to the general rule occurs when the will specifically orders that the property be sold and the proceeds be divided among the heirs." In re Estate of Hamel, 821 So. 2d 1276, 1279 (Fla. 2d DCA 2002).