Before you go running and create a last will and testament or a trust, lets consider the restrictions on the transfer of your Homestead at death. Homestead law states that if you are survived by a spouse or any minor children, then you may not transfer your Homestead in a Will or a trust. However, if you do not have any minor children then you may transfer your Homestead in a Will or a Trust only to your spouse. If you do not have any spouse or minor children, then you may transfer your Homestead to who ever you want.
The first question when transferring the Homestead to your children in a Will or a trust is whether you are married or not. If you are married, then the Homestead may only go to your spouse unless he or she signs a Homestead waiver. However, in most situations, you may be okay with your spouse inheriting your Homestead and she will need a place to reside until he or she passes away.
At this point if your surviving spouse does the proper estate planning, then your children will ultimately acquire the Homestead through inheritance.
One of the drawbacks to this method is if for example you have a blended family. Meaning that your children are not from the current marriage. When you pass away and your spouse inherits the Homestead, then it will be completely up to her of what to do with the property. He or she may sell it or transfer it to someone else altogether.
Usually what estate planning attorneys do in this situation is to set up revocable trusts waiving Homestead rights at death through Section 732.702 of the Florida Statutes. What this type of estate planning allows is for the surviving spouse to be able to reside in the property and be taken care of until death, and the property being transferred to your children at the death of the surviving spouse.
Now you may ask yourself, are there other planning opportunities where the children can inherit your Homestead without having to go through the Probate court system. The answer to that question is it depends on the facts and circumstances.
The most widely used tool by estate planning attorneys in order to avoid probate court is to use revocable living trusts. In some situations, the use a of life enhanced estate deed, more commonly called Lady Bird Deed, is sometimes utilized.