Probate with Homestead Property

[LegallyFrustrated]

Jurisdiction

Florida

This issue is regarding a probate case located in Florida, so I hope that someone familiar with Florida law can provide some clarification. The decedent died intestate in Florida, and there are multiple beneficiaries located out of state, with the personal representative also being one of the beneficiaries, for an estate consisting primarily of a residential property and a couple of bank accounts. Probate has been ongoing for nine months and is about to close if we all sign off. The house was designated a homestead property during probate so that all protections apply, but I have received conflicting information regarding what this means exactly with regard to administration and other fees.

I'm aware that the homestead designation protects the house from creditors, but is the house also protected from any attorney and administration fees as well as the 3% personal representative fee? Should these fees only come from other assets, like the bank accounts, and not from the house sale proceeds? I'm not clear on whether this designation means that the estate attorney overseeing the probate case and the personal representative (administrator / executor) can deduct their fee percentages from the house sale. This would result in them taking significantly more in fees than they should otherwise receive. I do not want to go into specific details, but suffice it to say, the PR has done a subpar job performing his duties, and I do not want him to receive more compensation than is deserved.

What is the correct information? I have been unable to get a clear answer on my specific question, so I would greatly appreciate any insight to be prepared moving forward. Thanks!

 

[doucar]

This issue is regarding a probate case located in Florida, so I hope that someone familiar with Florida law can provide some clarification. The decedent died intestate in Florida, and there are multiple beneficiaries located out of state, with the personal representative also being one of the beneficiaries, for an estate consisting primarily of a residential property and a couple of bank accounts. Probate has been ongoing for nine months and is about to close if we all sign off. The house was designated a homestead property during probate so that all protections apply, but I have received conflicting information regarding what this means exactly with regard to administration and other fees.

I'm aware that the homestead designation protects the house from creditors, but is the house also protected from any attorney and administration fees as well as the 3% personal representative fee? Should these fees only come from other assets, like the bank accounts, and not from the house sale proceeds? I'm not clear on whether this designation means that the estate attorney overseeing the probate case and the personal representative (administrator / executor) can deduct their fee percentages from the house sale. This would result in them taking significantly more in fees than they should otherwise receive. I do not want to go into specific details, but suffice it to say, the PR has done a subpar job performing his duties, and I do not want him to receive more compensation than is deserved.

What is the correct information? I have been unable to get a clear answer on my specific question, so I would greatly appreciate any insight to be prepared moving forward. Thanks!

Is the house going to be sold? If so, cash is cash and estate expenses have priority over all other claims to estate property.

 

[LegallyFrustrated]

Is the house going to be sold? If so, cash is cash and estate expenses have priority over all other claims to estate property.

Yes, the house was already sold, although for much less than suggested, based on comps in the area for similar properties. But that's a separate issue.

 

[Zigner]

The house is (was) a part of the estate. The cash proceeds from the sale of the house are part of the estate now. It makes sense that the value of the cash would be a part of the calculation for any PR fees allowed.

 

[adjusterjack]

I'm aware that the homestead designation protects the house from creditors,

That's not exactly correct. The Florida homestead exemption doesn't "protect the house from creditors," it prevents the levy and execution by "judgment creditors." There is a difference. With no judgments against the deceased while living, the homestead exemption is irrelevant with regards to the estate.

is the house also protected from any attorney and administration fees as well as the 3% personal representative fee? Should these fees only come from other assets, like the bank accounts, and not from the house sale proceeds?

The house doesn't owe anybody anything, (assuming mortgage and taxes have been paid) the estate does. If the personal rep is entitled to 3%, it's 3% of the total value of the estate. Then come attorney and administration fees. Then come the payments of the debts of the deceased. Whatever is left is divided among the heirs.

With regards to bank accounts, if the accounts listed a beneficiary or beneficiaries by name then the money belongs only to that beneficiary or beneficiaries and is not part of the estate.

Did the estate actually use an attorney. If yes, I find it hard to imagine that the attorney couldn't have answered these questioins for you.

 

[LegallyFrustrated]

With regards to bank accounts, if the accounts listed a beneficiary or beneficiaries by name then the money belongs only to that beneficiary or beneficiaries and is not part of the estate.

The bank accounts had no named beneficiaries listed, so yes, they are part of the estate and will be distributed.

Did the estate actually use an attorney. If yes, I find it hard to imagine that the attorney couldn't have answered these questions for you.

Yes, I mentioned that there is an estate attorney, but he is working on behalf of the personal representative and seems reluctant to answer my questions, especially if not in his client's best interests. In addition, the personal representative has not been in communication or responded to any requests since August, so I have no recourse there.

I have briefly consulted with a few attorneys, and one was a probate litigator who said that the estate attorney and personal representative should not take their fees from the house, while the two other attorneys gave no indication. Therein lies the confusion, so I had hoped for clarity.

 

[doucar]

The bank accounts had no named beneficiaries listed, so yes, they are part of the estate and will be distributed.



Yes, I mentioned that there is an estate attorney, but he is working on behalf of the personal representative and seems reluctant to answer my questions, especially if not in his client's best interests. In addition, the personal representative has not been in communication or responded to any requests since August, so I have no recourse there.

I have briefly consulted with a few attorneys, and one was a probate litigator who said that the estate attorney and personal representative should not take their fees from the house, while the two other attorneys gave no indication. Therein lies the confusion, so I had hoped for clarity.

As I noted before, once the house is sold, cash is cash and can be used to pay estate expenses.

 

[LegallyFrustrated]

As I noted before, once the house is sold, cash is cash and can be used to pay estate expenses.

Yes, I was replying to adjusterjack as was quoted. But thanks.

 

[adjusterjack]

Yes, I mentioned that there is an estate attorney, but he is working on behalf of the personal representative and seems reluctant to answer my questions, especially if not in his client's best interests. In addition, the personal representative has not been in communication or responded to any requests since August, so I have no recourse there.

Of course you have recourse. Depending on what "communication" you want you can petition the court to compel the personal representative to provide it.

See Florida statute 733.604.

Chapter 733 Section 604 - 2022 Florida Statutes - The Florida Senate (flsenate.gov)

I have briefly consulted with a few attorneys, and one was a probate litigator who said that the estate attorney and personal representative should not take their fees from the house, while the two other attorneys gave no indication. Therein lies the confusion, so I had hoped for clarity.

Fees are clearly spelled out by Florida statute 733.617 for the personal representative

Chapter 733 Section 617 - 2022 Florida Statutes - The Florida Senate (flsenate.gov)

The personal representative gets a commission based on "inventory value of the probate estate assets and the income earned by the estate during administration." That inventory includes the value of the house. The personal representative is allowed "further compensation as is reasonable for any extraordinary services including, but not limited to: (a) the sale of real or personal property." There's more in that section.

And 733.6171 for the attorney

Chapter 733 Section 6171 - 2022 Florida Statutes - The Florida Senate (flsenate.gov)

Similar to the compensation for personal representatives.

 

[LegallyFrustrated]

Thanks for providing links to those Florida statutes. I appreciate the information.

Of course you have recourse. Depending on what "communication" you want you can petition the court to compel the personal representative to provide it.

By having no recourse, I meant with regard to my question about the homestead property and related fees. However, I did bring up the lack of communication from the personal representative during this process to the estate attorney a few months ago, and they said that the PR does not have to communicate if he so chooses as long as I am provided information from their office.

Also, I mentioned this as a possible problem to the attorneys that I consulted with, and they did not think that it was an issue. As for petitioning the court myself, I have no idea how to do that without hiring an attorney, and based on the Florida statutes that you provided, it does not seem worth pursuing at this point.

 

[adjusterjack]

By having no recourse, I meant with regard to my question about the homestead property and related fees.

The fee statutes confirm that.

they said that the PR does not have to communicate if he so chooses as long as I am provided information from their office.

That's correct.

That's why lawyers are called "mouthpieces." They speak for their clients so their clients don't have to communicate.