Status of homestead after judgment debtor's death

[roberts756]

What is the name of your state? Florida

I am judgment debtor living in Florida. I have a small home (land and home together valued around 50K) on my name and live in that home. As this is my homestead, the debtor cannot get it due to Article X, Sec. 4(a)(1) http://www.leg.state.fl.us/statutes/index.cfm?submenu=3#A10S04 . I have wife and a child. Once I die, without writing any will or trust, what will happen to this home? Can the debtor get this home or my wife and child can get it (whether they live in the same homestead or not)?

 

[zddoodah]

As this is my homestead, the debtor cannot get it due to Article X, Sec. 4(a)(1) http://www.leg.state.fl.us/statutes/index.cfm?submenu=3#A10S04 .

*creditor

A debtor (you in this scenario) is a person who owes a debt to another, the creditor.

I have wife and a child. Once I die, without writing any will or trust, what will happen to this home?

No one has a crystal ball that is sufficiently strong to answer the question.

Is title to your home in your name only, or do you and your wife hold title jointly? Is there some reason why you don't want to make a will or trust? Is there a particular creditor about which you're concerned? If so, has the creditor sued you and won a judgment? If so, has the judgment been recorded in the county where the home is located?

Can the debtor get this home or my wife and child can get it (whether they live in the same homestead or not)?

If the home is in your name alone and you have no will or trust when you die, your spouse will in position to inherit the home.

By the way, did you actually read the statute to which you linked? I ask because your question suggests you did not.

 

[roberts756]

Thanks for detailed answer.

The home is on my name and my wife’s name, as tenants by entirety. The creditor sued me alone, after we (I and my wife) have this home (as our homestead) for several years, and won the case. The lawsuit/judgment is for another reason (I could not complete a work on time for which he hired me, then he filed lawsuit for breach of agreement): The case is nothing to do with my home, and the home is not used anywhere in the lawsuit or judgment or the agreement I had with the creditor to complete the work. The judgment is only against me, not on my wife. The judgment has been recorded in the county where the home is located. The creditor put a lien on my home but he cannot get my home as it is my homestead even before the lawsuit was filed (also the home is a tenants by entirety).

Can I and my wife write a will or a trust indicating that the home goes to our child (after I and my wife die) while that lien is there on the home OR we need to vacate the lien first, before writing a will or a trust?

 

[Litigator22]

What is the name of your state? Florida

I am judgment debtor living in Florida. I have a small home (land and home together valued around 50K) on my name and live in that home. As this is my homestead, the debtor cannot get it due to Article X, Sec. 4(a)(1) http://www.leg.state.fl.us/statutes/index.cfm?submenu=3#A10S04 . I have wife and a child. Once I die, without writing any will or trust, what will happen to this home? Can the debtor get this home or my wife and child can get it (whether they live in the same homestead or not)?

Granted, like some other examples of the Sunshine State's less than perfect legislation Florida's Homestead Exemption enactment has its glaring shortcomings. However, for your present needs and purposes you should find gratification from the following excerpts:

"SECTION 4. Homestead Exemptions

* * *
(2) (b) These exemptions shall inure to the surviving spouse or heirs of the owner."

"inure = law/ come into operation; take effect - "

 

[Taxing Matters]

Thanks for detailed answer.

The home is on my name and my wife’s name, as tenants by entirety. The creditor sued me alone, after we (I and my wife) have this home (as our homestead) for several years, and won the case.

The fact that the home is owned as tenants by the entirety but the judgment is only against you is significant. Tenants by the entirety (TBE) is a form of ownership that applies only to married couples. With TBE ownership, it is the marital unit (which is made up of you and your wife) that owns the property rather than you and your wife having any separate interest in the home. Because you don't have any separate interest in the home a judgment against only you does not attach to anything you two own together as TBE. It also means that of you do not have an individual interest in the home that you may transfer to others.

When the first of you and wife die, the home becomes the sole property of the surviving spouse even if the decedent spouse has will saying their part of the home goes to someone else. Thus the judgment should not attach to the home at all unless you become the sole owner of it, e.g. your wife dies before you do. That's the point at which you'd need the homestead exemption to help you out. I won't dive into the homestead exemption as others have already answered that part.

It is possible in Florida for a married couple to hold the property as tenants in common rather than TBE, but that's uncommon and typically would require the deed to specifically state that. It's pretty rare for any couple to decide to own their home that way.

 

[zddoodah]

Can I and my wife write a will or a trust indicating that the home goes to our child (after I and my wife die) while that lien is there on the home OR we need to vacate the lien first, before writing a will or a trust?

[deleted text because I completely misread what the OP wrote] While I appreciate you answering most of the questions I asked, you ignored my question about whether you actually read the statute to which you linked. "Litigator22" pointed out an important section.

Ultimately, if you're concerned about what happens after you die, you should consult with a local estate planning attorney.

 

[roberts756]

Thanks for all responses, it really helped me.

I did not read the statute I linked but now I read, and thanks again Zddoodah