Protections From Creditor’s Claims in Probate

This blog applies only to Florida residents and Florida assets.

Florida Statute 732.403 provides in the estate of a person domiciled in Florida at the time of death, the surviving spouse, or if none, then children of the decedent, shall have the right to have specified property determined to be exempt from creditor’s claims (except for perfected security interests).

Exempt property includes household furniture, furnishings, and appliances in the decedent’s usual place of abode up to a net value of $20,000.00 as of date of death.

Also included are 2 motor vehicles as defined in 316.003 which individually do not have a gross vehicle weight over 15,000 pounds, held in the decedent’s name and regularly used by the decedent or members of the decedent’s family as their personal motor vehicles.

Also included are all qualified tuition programs authorized by Section 529 of the IRS Code of 1986 and the Florida Prepaid College Trust Fund advance payment contracts.

Property specifically or demonstratively devised under the decedent’s will shall not be exempt unless the person to who devised is entitled to exempt property has the court determine it as exempt, except as to perfected security claims.

Family Allowance

Florida Statute 732.403 provides: “In addition to protected homestead and statutory entitlements, if the decedent was supporting or was obligated to support are entitled to a reasonable allowance in money out of the estate for their maintenance during administration. The court may order this allowance to be paid as a lump sum or periodic installments. The allowance shall not exceed a total of $18,000.00. It shall be paid to the surviving spouse, if living, for the use of the spouse and dependent lineal heirs. If the surviving spouse is not living, it shall be paid to the lineal heirs or to the persons having their care and custody. If any lineal heir is not living with the surviving spouse, the allowance may be made partly to the lineal heir or guardian or other person having the heir’s care and custody and partly to the surviving spouse, as the needs of the dependent heir and the surviving spouse appear. The family allowance is not chargeable against any benefit or share otherwise passing to the surviving spouse or to the dependent lineal heirs, unless the will otherwise provides. The death of any person entitled to a family allowance terminates the right to that part of the allowance not paid. For purposes of this section, the term “lineal heir” or “lineal heirs” means lineal ascendants and lineal descendants of the decedent.”