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The Florida probate code includes certain safeguards to protect the decedent’s family, specifically the children and surviving spouse. Two of those safeguards that often come into play during the administration of an estate in Florida are: exempt property and family allowance. The exempt property and family allowance statutes are designed to provide immediate relief to the decedent’s surviving family members during the probate administration of the estate, without having to wait until the end of the creditor period.
What Does Being “Exempt” Mean?
Essentially, the property that is “exempt” in the Florida probate context is going to be considered unreachable by creditor claims made against the estate in the majority of circumstances, with the exception of perfected security claims. This is taken into account in addition to any other devises made to the beneficiaries in the decedent’s will, as well as homestead and other entitlements. However, if the decedent specifically devised the property when executing the will, the property will not be considered exempt property unless the devisee would otherwise be entitled to it as exempt property and he or she petitions for the court to determine exempt property either four months from the service of the notice of administration of the decedent’s estate or 40 days after the end of a proceeding pertaining to the estate.
As the above shows, when administering an estate in Florida, there are often many complex factors to be taken into account. Those who have questions regarding the process must seek the help of an experienced Florida Probate Attorney.
If a decedent was living as a resident of the State of Florida at the time of his or her death and was survived by children or a spouse, then the “exempt property” will be free from all creditor claims against the decedent’s estate, except for perfected security interests, as mentioned above. Section 732.402 of the Florida Probate Code provides a list of the property that falls within the “exempt property” category, which includes:
- Household appliances, furniture, and furnishings in the decedent’s home up to a net value of $20,000 as of the decedent’s date of death;
- Two motor vehicles, as long as each vehicle has a total weight lower than 15,000 pounds, and the vehicles were owned and regularly used by the decedent or members of the decedent’s family as their personal motor vehicles for transportation;
- Qualified tuition programs, allowed by section 529 of the internal revenue code;
- Death benefits for school administrators and teachers as contemplated by the Florida Statutes.
There are, however, certain exceptions to the rule governing what is considered exempt property in Florida. As mentioned above, property specifically devised by the decedent in his or her will is excluded from the exempt property category. This means, for example, that if a decedent specifically devises one of his or her motor vehicles to someone who is not the decedent’s surviving spouse or children, then, under the Florida probate code, that motor vehicle will not qualify as exempt property.
Persons entitled to exempt property must act fast in order to receive the exempt property protection that is offered by the Florida probate code. If a surviving spouse or child of the decedent does not petition the court for a determination of exempt property within the required time period, that person’s rights to exempt property will be deemed to be waived.
In addition to exempt property, the Florida probate code allows for a “family allowance” for the decedent’s surviving spouse or lineal heirs whom the decedent was either supporting or obligated to support. The family allowance is a cash distribution from the decedent’s estate which can be distributed to such qualified persons either in a one-time payment or in periodic installments as long as they do not exceed $18,000. The family allowance is awarded to a decedent’s immediate family in addition to exempt property and other protections offered by the Florida probate code.
At our Miami Probate Law Firm, Farshchian Law, P.A., our experienced Florida Probate Attorneys are prepared to help you in all matters related to Florida Probate. Call us at (305) 901-5628 or send us an email to Probate@JFRealEstateLaw.com to discuss your situation.