Losing a loved one is difficult enough without having to worry about what happens to the family home. If you’ve found yourself asking whether you can keep your family home during probate in Florida, you’re not alone. This is one of the most common and emotionally charged concerns we help clients navigate.
The answer depends on several key factors, including whether the property qualifies as a Florida homestead, how the home was titled, and whether a valid will exists. Understanding how homestead exemption and probate law interact is critical to preserving property rights—and peace of mind—for surviving family members.
Understanding the Florida Homestead Exemption in Probate
Florida’s homestead laws offer strong protection for primary residences. If the home qualifies as a Florida homestead, it may be exempt from creditor claims during probate. This is one of the most important distinctions to understand when it comes to keeping the family home.
The homestead exemption also plays a key role in determining how the home passes to heirs. For example, under Florida law, if the deceased was married and the property was their homestead, the surviving spouse may have an automatic right to a life estate or even full ownership, depending on whether there are minor children involved.
For a more comprehensive look at Florida’s probate framework, we recommend reading our post on the essential probate requirements for Florida residents.
What Happens to the Home During Probate?
Probate is the court-supervised process of distributing a deceased person’s assets. If the family home is titled solely in the decedent’s name and not placed in a trust or otherwise transferred before death, it likely must go through probate.
However, homestead property is treated differently than other assets. Although it still goes through a legal process, it is not considered a probate asset for distribution purposes, meaning it typically goes directly to heirs as outlined by Florida law.
Still, several formal steps must be followed to declare the home as protected homestead, which is where the help of a Florida probate lawyer becomes invaluable.
You can learn more about the differences between probate and non-probate assets in our dedicated guide on probate vs. non-probate assets.
Can the Home Be Sold During Probate?
In some situations, yes. If the home is not protected by the homestead exemption or the will directs its sale, the personal representative of the estate may sell it during probate. If the home is a protected homestead, however, it cannot be sold by the estate unless the heirs choose to do so after it’s transferred.
There are important restrictions when minors are involved or when the title is unclear. We often guide clients through these scenarios by providing insight into both legal and procedural options, especially when complications arise.
To understand potential timeframes involved, our blog on the Florida probate timeline offers helpful context.
What If There’s No Will?
If a loved one passes away without a will, the rules of intestate succession apply. That means the court will follow Florida’s default distribution laws to decide who inherits the home. This can be especially complicated if multiple family members have a claim.
In such cases, our team can help navigate these waters. We’ve outlined why having a will isn’t always enough to avoid probate in our blog, A Will Is Not Enough to Avoid Probate in Florida.
How to Protect the Family Home from Probate in the Future?
There are several planning tools we can help implement to avoid having the family home go through probate entirely. These include:
- Living trusts
- Enhanced life estate deeds (Lady Bird deeds)
- Proper co-ownership titling (like joint tenancy with rights of survivorship)
For those exploring options to avoid probate altogether, check out our article on gifting property to avoid probate and the reasons to avoid probate.
If Medicaid planning is also a concern—for instance, if you’re trying to preserve the home for a spouse or loved one—we recommend reading how the Florida probate and Medicaid systems intersect.
Get Help with Probate and Protecting Your Family Home
If you’re facing probate and wondering what your options are for keeping the family home, we can help. Call 727-235-6005 today or schedule a consultation with our experienced team.
At Michael T. Heider, P.A., we provide personalized guidance for navigating Florida probate with confidence and clarity.
