By: Rebecca L. Nichols, Esq.

Published at

7 May 2024

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Exempt Property and Florida Probate Administrations

The probate process aims at winding up the decedent’s affairs following his or her passing. Part of the winding-up process is satisfying creditor claims where the decedent owed monies at the time of passing. 

But before we dive deep, we must understand the meaning of exempt property in Florida probate administration

In Florida probate administration, property free from creditors' claims, meaning that creditors cannot obtain judgments against it is termed exempted properties.  These are usually classified as homestead property, which was the primary property of the decedent or surviving spouse. Other types of exempt property in Florida may include individual retirement accounts (IRAs), vehicles, and certain types of personal property.

In simple terms, Exempt properties refer to assets that are protected from being seized or liquidated to satisfy a debt or judgment.

Creditor claims against an estate include medical bills, credit card bills, personal loans, funeral home invoices, etc.,  These claims are payable only from assets subject to administration, or “unexempt” assets.  Unexempt assets are liquidated and used to satisfy various creditor claims, including expenses associated with the administration of the estate, before being distributed to beneficiaries.

What assets are exempt from probate in Florida?

Although unexempt assets may have to be liquidated to satisfy the claims of creditors, exempt assets do not have to be liquidated to satisfy creditor claims.  

According to Florida Statute 732.402 Protected assets, or “exempt” assets, in Florida probate administrations include the following:

  1. The decedent’s residential homestead property.
  2. Up to $1,000.00 of personal property.
  3. Household furniture, furnishings, and appliances in the decedent’s home up to a net value of $20,000.00 as of the decedent’s date of death.
  4. Two motor vehicles held in the decedent’s name and regularly used by the decedent and his or her family as their motor vehicles.
  5. Qualified tuition programs, including, but not limited to, the Florida Prepaid College Trust Fund advance contracts and participation agreements.
  6. Certain death benefits are payable to teachers and school administrators.
  7. Family allowance for the surviving spouse or lineal heirs receiving support from the decedent up to $18,000.00.

Additional statutory exemptions include

  1. Life insurance policies, 
  2. Cash surrender value of life insurance policies and annuity contracts, 
  3. Wages or unemployment compensation, 
  4. Disability income benefits, 
  5. Pension money, and certain tax-exempt funds, 
  6. Assets in qualifying medical savings accounts or hurricane savings accounts.

Who Can Claim Exempt Assets?

Exempt assets may be claimed in estates where the decedent was domiciled in Florida at the time of death. Only certain individuals are entitled to have certain assets designated as “exempt property.”  Those individuals include the surviving spouse, or, if there is no surviving spouse, the decedent's children.

How are Exempt Assets Determined?

Individuals entitled to Florida-exempt property must file a Petition to Determine Homestead Status of Real Property or a Petition for Determination of Exempt Property and have a Judge enter an Order deeming the assets exempt or protected.  The petition to determine exempt property must be filed four (4) months after being served with a Notice of Administration or forty (40) days after the termination date of any proceeding involving the construction, admission to probate, or validity of the decedent’s Will, or the right to claim said exemptions is deemed to be waived.

What Does an Order Designating Assets as Exempt Do?

An Order Determining Exempt Property in Florida authorizes a personal representative to release the subject property to the appropriate parties, as determined by the case facts.

Are Exempt Assets Included in the Value of the Estate?

Property judicially determined to be exempt is excluded from the estate value before residuary, intestate, pretermitted, or elective shares are determined.  

What if there is a Lien on an Exempt Asset?

Florida statute provides that exempt property is exempt from all claims against the estate, except for security interests on estate assets.

If you recently lost a family member or loved one and need guidance on probate proceedings, contact our office to schedule a complimentary consultation with one of our qualified Florida probate administration attorneys today.

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