Fl. Prob. R. 5.405

As amended through November 4, 2024

Rule 5.405 - PROCEEDINGS TO DETERMINE PROTECTED HOMESTEAD STATUS OF REAL PROPERTY

(a) Petition. An interested person may file a petition to determine the protected homestead status of real property owned by the decedent or owned by the trustee of a trust described in section 733.707(3), Florida Statutes, of which the deceased settlor was treated as the owner of the real property under section 732.4015, Florida Statutes.

(b) Contents. The petition must be verified by the petitioner and must state:

(1) the petitioner's interest in the determination of protected homestead status for the real property;

(2) the date of the decedent's death;

(3) the county of the decedent's domicile at the time of death;

(4) whether the decedent was survived by a spouse, and if so, the name of the decedent's surviving spouse, and whether the surviving spouse waived the surviving spouse's homestead rights;

(5) the names of surviving descendants, and a statement as to whether the decedent had any minor children as of the date of death, identifying any minor children by name and year of birth;

(6) a legal description of the property owned by the decedent on which protected homestead is claimed;

(7) whether the property was the domicile of the decedent, or if not, whether the property was located within a municipality and was the domicile of a member of the decedent's family;

(8) how the real property was titled at the time of the decedent's death; and

(9) any other facts in support of the petition.

(c) Service of Notice. The petition must be served on interested persons by formal notice.

(d) Order. The court's order on the petition must describe the real property and determine whether any of the real property constituted the protected homestead of the decedent. If the court determines that any of the real property was the protected homestead of the decedent, the order must identify by name the person or persons entitled to the protected homestead real property and define the interest of each.

Fl. Prob. R. 5.405

Amended by 390 So.3d 624, effective 10/1/2024; amended by 2021 WL 5121143, effective 11/4/2021; amended by 2021 WL 5050374, effective 10/28/2021; amended by 139 So.3d 875, effective 4/22/2014; amended by 102 So.3d 505, effective 9/1/2012; amended by 50 So.3d 578, effective 1/1/2011; amended by 824 So.2d 849, effective 5/2/2002; amended by 683 So.2d 78, effective 1/1/1997; amended by 531 So.2d 1261, effective 1/1/1989; added by 458 So.2d 1079, effective 1/1/1985.

Committee Notes

This rule establishes the procedure by which the personal representative or any interested person may petition the court for a determination that certain real property constituted the decedent's protected homestead property, in accordance with article X, section 4 of the Florida Constitution. The jurisdiction of the court to determine constitutional protected homestead property was established by In re Noble's Estate, 73 So. 2d 873 (Fla. 1954).

Rule History

1984 Revision: New rule.

1988 Revision: Editorial change in (a). Subdivision (b)(4) amended to conform to constitutional change. Committee notes revised. Citation form change in committee notes.

1992 Revision: Editorial change. Committee notes revised. Citation form changes in committee notes.

1996 Revision: Subdivision (c) amended to require description of real property that is the subject of the petition, description of any homestead property, and definition of specific interests of persons entitled to homestead real property.

2002 Revision: Replaces "homestead" with "protected homestead" throughout to conform to addition of term in section 731.201(29), Florida Statutes. Committee notes revised.

2003 Revision: Committee notes revised.

2007 Revision: Committee notes revised.

2010 Revision: Committee notes revised.

2012 Revision: Committee notes revised.

2014 Revision: Amends subdivisions (b)(3) and (c) to conform to Fla. R. Gen. Prac. & Jud. Admin. 2.425. Committee notes revised.

2021 Revision: Amends subdivisions (a) and (b)(5) to include real property owned by a trust. Committee notes revised.

2024 Revision: New subdivision (b)(5) created to conform to the requirements to determine protected homestead in Florida under Art. X, Sec. 4, (1), Florida Constitution. Contents of former subdivisions (b)(5) and (b)(6) moved to subdivisions (b)(6) and (b)(7) accordingly. New subdivision (d) created and the contents of former subdivision (c) moved to subdivision (d). Subdivision (c) created to clarify notice under the rule. Committee notes revised.

Constitutional Reference

Art. X, § 4, Fla. Const.

Statutory References

§ 731.104, Fla. Stat. Verification of documents.

§ 731.201, Fla. Stat. General definitions.

§ 731.301, Fla. Stat. Notice.

§ 731.302, Fla. Stat. Waiver and consent by interested person.

§ 732.103, Fla. Stat. Share of other heirs.

§ 732.104, Fla. Stat. Inheritance per stirpes.

§ 732.401, Fla. Stat. Descent of homestead.

§ 732.4015, Fla. Stat. Devise of homestead.

§ 732.702, Fla. Stat. Waiver of spousal rights.

§ 732.7025, Fla. Stat. Waiver of homestead rights by deed.

§ 733.607, Fla. Stat. Possession of estate.

§ 733.608, Fla. Stat. General power of the personal representative.

§ 733.707(3), Fla. Stat. Order of payment of expenses and obligations.

§ 736.0201(7), Fla. Stat. Role of court in trust proceedings.

§ 736.1109, Fla. Stat. Testamentary and revocable trusts; homestead protections.

§ 736.151, Fla. Stat. Homestead property.

Rule References

Fla. Prob. R. 5.020 Pleadings; verification; motions.

Fla. Prob. R. 5.040 Notice.

Fla. Prob. R. 5.041 Service of pleadings and documents.

Fla. Prob. R. 5.180 Waiver and consent.

Fla. Prob. R. 5.205(a)(6) Filing evidence of death.

Fla. Prob. R. 5.340 Inventory.

Fla. Prob. R. 5.404 Notice of taking possession of protected homestead.

Fla. R. Gen. Prac. & Jud. Admin. 2.516 Service of pleadings and documents.

Fla. R. Gen. Prac. & Jud. Admin. 2.425 Minimization of the Filing of Sensitive Information.