Clients who prepare living trusts for estate planning frequently will ask me whether they should transfer the legal title of their Florida homestead property to the name of their living trust. If the property is transferred to the trust the successor trustee will transfer or dispose of the property after the death of the trustmaker as directed by terms of the trust. If the property is not in the name of the trust, then the homestead will be governed by laws related to homestead descent.
The homestead rule is that if the house is owned jointly by two spouses then upon the first death the title passes to the surviving spouse. If the homestead is owned by one spouse, and the owner spouse dies first, the surviving spouse has a “life estate” that gives the surviving spouse occupancy and control during their lives, and upon the second spouse’s death the title passes by operation of law to children equally. If the property is owned by the couples’ joint trust or the trust of the sole owner the living trust may not provide override these homestead rules and provide a different plan for the homestead. For instance, a living trust cannot say that when I die the homestead goes to my spouse and upon my spouse’s death it goes to my siblings even though I have living descendants.
If the couple has no children then the surviving spouse gets total control and can have their trust direct the homestead to anyone they want whether or not the home is owned jointly or is owned by the first spouse to die.
So, if a trustmaker has children then in most cases I recommend leaving the homestead in individual name rather than transferring it to a living trust because the trust provisions are subject to homestead rules and any different plan is not legally effective.
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