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Legacy Protection Lawyers St. Petersburg Estate Planning, Probate & Trust Lawyer

What Property Is Exempt From Creditor Claims In A Probate Estate?


Debts do not necessarily die with the debtor. A decedent’s creditors may file a claim for payment against their probate estate. The estate is then normally required to pay such creditors to the extent possible from the estate’s assets after other, higher-priority expenses are paid.

But not all probate assets are subject to creditor claims. Florida provides fairly robust legal protections for certain “exempt property.” These protections are designed to help ensure that a decedent’s surviving spouse and children are not left with nothing following the decedent’s death.

Florida’s Constitution Exempts Homestead Property

If you own your home, you may already be aware of Florida’s homestead exemption. This is a protection built-in to the state Constitution that prevent the forced sale of a person’s primary residence (in most cases) to satisfy unsecured creditor claims. This constitutional protection extends to the “surviving spouse or heirs of the owner.” So while the homestead exemption would not protect against a secured claim–i.e., a mortgage on the property–it would prevent an unsecured creditor from seeking to sell the decedent’s house from underneath their surviving spouse or children. The constitutional homestead exemption also protects up to $1,000 in personal property.

Statutory Exemptions

Separate from the constitutional exemption, Section 732.402 of the Florida Statutes lists additional forms of exempt property. These exemptions protect the surviving spouse or children of a deceased Florida resident. The exemptions include:

  • Household furniture, furnishings, and appliances in the decedent’s normal residence, up to $20,000 (valued as of the date of death).
  • Up to 2 motor vehicles, provided neither vehicle weighs more than 15,000 pounds. In other words, you can exempt a family car but not a commercial four-wheel truck. The exempt vehicles must also have been titled in the decedent’s name and regularly used by them or their immediate family as personal vehicles.
  • Any monies paid into a qualified college tuition program, such as the Florida Prepaid College Trust Fund.
  • Any death benefits paid to teachers and school administrators under Florida law.

Exceptions to Exempt Property

One thing to keep in mind is that exempt property is not automatically protected by the probate court. The persons entitled to the exemption need to file a petition for a “determination of exempt property” within four months of receiving the Notice of Administration for the estate, or within 40 days of the termination of any proceeding involving the construction or admission of the decedent’s will to probate. If no such petition is filed on time, the law deems any right to exempt property waived.

Additionally, any property that is “specifically or demonstratively devised” by will is excluded from exempt property. In simple terms, if the decedent, say, left a particular item of furniture to someone who was not their spouse or child, that item could not be claimed as exempt property.

Speak with a Florida Probate Lawyer Today

There are a number of complicated laws and regulations dealing with the administration of probate estate. That is why it is important to work with a qualified St. Petersburg probate and trust administration lawyer to ensure that your rights are understood and respected. Contact Legacy Protection Lawyers, LLP, to schedule a consultation today.


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