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August 25, 2022

A recurring challenge in Florida Probate administrations centers around the handling of homestead Property.  As the homestead property is not an estate asset and thus not in the hands of the personal representative as a matter of law.  In practice of course the homestead is a central part of the probate administration and the primary topic of most of our clients’ concerns.  The Florida probate code recognizes that a Personal Representative may need to take possession of homestead property to preserve or otherwise maintain it until the Order Determining Homestead Status of Real Property transfers the property to the appropriate heirs.  Florida Statute 733.608(2) – General Powers of the Personal Representative provides: 

(2) If property that reasonably appears to the personal representative to be protected homestead is not occupied by a person who appears to have an interest in the property, the personal representative is authorized, but not required, to take possession of that property for the limited purpose of preserving, insuring, and protecting it for the person having an interest in the property, pending a determination of its homestead status. If the personal representative takes possession of that property, any rents and revenues may be collected by the personal representative for the account of the heir or devisee, but the personal representative shall have no duty to rent or otherwise make the property productive.

This is done via a notice of taking possession of protected homestead and if the Personal Representative takes possession and expends costs associated with the Property then the statute also specifically provides that as follows: 

(3) If the personal representative expends funds or incurs obligations to preserve, maintain, insure, or protect the property referenced in subsection (2), the personal representative shall be entitled to a lien on that property and its revenues to secure repayment of those expenditures and obligations incurred. These expenditures and obligations incurred, including, but not limited to, fees and costs, shall constitute a debt owed to the personal representative that is charged against and which may be secured by a lien on the protected homestead, as provided in this section. The debt shall include any amounts paid for these purposes after the decedent’s death and prior to the personal representative’s appointment to the extent later ratified by the personal representative in the court proceeding provided for in this section.

This is an important practical tool and safeguard for Florida estate administrations.  Often our clients need to incur expenses to preserve a homestead property and the above referenced statutory provision allows for the recovery of fees and expenses incurred to cover the ongoing costs of the home.  This can be in the form of utilities, mortgage payments, repairs, security, insurance, evictions/possession actions.  Anything that needs to be done to preserve the asset pending a resolution by the Court.  Understand that if the beneficiaries/heirs of the Estate have no objection to the recovery of these expenses this is a non-issue.  The importance of this provision for Florida estate administrations is that this allows the Personal Representative to lien a homestead property to recover expenses incurred when there is no agreement for reimbursement from the other beneficiaries or interested parties in the homestead property.  Recall the Personal Representative has no power over homestead property and thus without this provision would not be able to recover against this asset.  Importantly a Personal Representative’s lien is not a catch all for the recovery of all expenses of administration and attorney fees.  The lien only allows for the recovery of expenses and fees associated with the preservation and protection of homestead property.  Herrilka v. Yates, 13 So. 3d 122, 124 (Fla. Dist. Ct. App. 2009). 

The Personal Representative lien is foreclosed under Florida law in the same manner as other liens.  This is a powerful and important tool for estate administrators when you are placed in the tough position of having beneficiaries/heirs that don’t see eye-to-eye and the immediate need to prevent waste and preserve the value of a homestead property.