DATE:Aug. 7, 2002.

Personal representative of testator’s estate petitioned to determine homestead, and claimant against estate opposed petition. The Circuit Court, Sarasota County, Andrew D. Owens, Jr., J., denied petition, and personal representative appealed. The District Court of Appeal, Altenbernd, J., held that homestead rights vested in devisees at time of testator’s death.

Reversed.

[*1277] COUNSEL: Stanley A. Goldsmith, Sarasota, for Appellant.
Theodore Parker of Theodore Parker, P.A., Sarasota, for Appellee.

ALTENBERND, Judge.

Karen H. White, individually and as personal representative of the estate of her father, Jack Hamel, appeals an order denying a petition to determine homestead. Theodore Parker, P.A., a creditor of Mr. Hamel’s estate, objected to the determination. The trial court correctly ruled that a condominium owned by Mr. Hamel was homestead on the date of his death. Mr. Hamel’s will disposed of the condominium to his adult daughters through a residual clause that permitted the property to be distributed in kind. Because the daughters did not obtain an order determining homestead before they sold the condominium to fulfill a contract of sale executed by their father prior to his death, the trial court decided that the constitutional homestead protection from creditors’ claims did not inure to these heirs. We conclude that the homestead protection inured to these heirs at the time of Mr. Hamel’s death and that a judicial determination of homestead is not the controlling factor in this case. We therefore reverse the trial court’s order.

The narrow, dispositive issue in this case is whether, prior to the entry of an order determining homestead, a decedent’s heirs lose homestead protection if they transfer homestead property in compliance with a decedent’s contract for sale when the heirs inherit the property through a residual clause in a will that permits the property to be distributed in kind. Under these circumstances, we conclude that homestead protection from creditors’ claims does inure to the heirs.

The facts in this case are undisputed. Mr. Hamel executed a will on November 28, 1990. The will is not a detailed document and made no specific bequest of homestead property. Instead, any and all real property owned by Mr. Hamel was devised through the residuary clause. It directed that the “rest, residue and remainder of decedent’s property of whatever kind or nature and wherever situate” be divided equally among his surviving children. The will further allowed the personal [*1278] representative “to distribute in kind or in money, or partly in each.î

Shortly before his death, Mr. Hamel entered into a contract to sell his residence, a condominium in Sarasota County. Mr. Hamel died on January 14, 2000, prior to the closing of the transaction. He was survived by both of his adult children, Ms. White and her sister, Kim Hamel.

Mr. Hamel’s will was admitted to probate, and letters of administration were issued to Ms. White as his designated personal representative on February 28, 2000. Later that day, Ms. White participated in a closing on the sale of Mr. Hamel’s condominium. Because the probate court had not yet determined that the condominium was homestead property, the buyer required two deeds, one from Ms. White as personal representative in the event the property was later determined to not be homestead, and one from Ms. White and Ms. Hamel as individuals, in the event the property was later determined to be homestead. The net proceeds of the sale, approximately $900,000, were placed in escrow pending a decision on the homestead status of the property.

Ms. White issued notice of the administration of the estate. Mr. Parker, an attorney who had provided services to Mr. Hamel, filed two claims on behalf of his professional association against Mr. Hamel’s estate. Other claims were also filed. If the proceeds from the sale of Mr. Hamel’s condominium are entitled to homestead protection, the probate estate apparently will be insufficient to pay in full the timely claims of all creditors.

Ms. White filed a petition to determine homestead property on October 6, 2000. Mr. Parker filed a motion in opposition to the petition to determine homestead. Mr. Parker was the only creditor to contest the homestead determination and the only creditor to appear at the hearing on this issue.

The trial court denied the petition to determine homestead. It issued an order finding that, although the condominium was the homestead property of Mr. Hamel at the time of his death, the property was converted to dollars before a formal homestead determination could occur, and therefore, the proceeds of the sale were not exempt from the claims of creditors. Ms. White appeals this order.

The parties agree that the condominium was the homestead property of Mr. Hamel when he died. As such, it was exempt from the claims of Mr. Hamel’s creditors pursuant to article X, section 4 of the Florida Constitution. The parties also agree that, generally, homestead property passes free of claims of the decedent’s creditors if the devisee of the property under the will is an heir of the decedent, that is, someone within the class of persons who could be a beneficiary of the decedent under the laws of intestacy. See Snyder v. Davis, 699 So.2d 999, 1002 (Fla.1997); Monks v. Smith, 609 So.2d 740, 742 (Fla. 1st DCA 1992). Mr. Hamel’s two daughters clearly meet this requirement. See § 732.103(1), Fla. Stat. (2000) (designating lineal descendants as beneficiaries of intestate estates).

The parties disagree, however, on the application of these basic rules to the facts of this case. Each side has argued its case well and in detail. Mr. Parker primarily argues that, although the property was Mr. Hamel’s homestead on the date of his death and his daughters were heirs, the property became an asset of the probate estate until an order determining homestead could be obtained. Because the property was sold before such a determination was made, he argues that the homestead status was destroyed and the proceeds from the homestead became an [*1279] estate asset subject to creditor’s claims. He seems to concede that the proceeds would have been protected if the sale had been deferred until after the entry of an order determining homestead.

Ms. White argues that the heirs’ right to homestead protection attached at the moment of the decedent’s death. She maintains that the property never entered the estate. Even if the property became an asset of the probate estate for the purposes of administration, she argues that the homestead status was established by the law and the facts at the time of death and that subsequent events did not change the status of the property. Accordingly, she asserts that the probate court was obligated to enter an order declaring the condominium as homestead property.

There was a time in history when only decedents without children could dispose of a homestead by will. See Walker v. Redding, 40 Fla. 124, 23 So. 565, 566 (1898) (citing art. X, § 4, Fla. Const. (1885)). Unless the decedent had no children, the homestead was not considered a part of the probate estate and descended to the appropriate heirs by operation of law. See Hedick v. Hedick, 38 Fla. 252, 21 So. 101 (1896).FN1 In 1968, the Florida Constitution was revised to allow a devise of homestead unless a decedent was survived by a spouse or minor children. Art. X, § 4(c), Fla. Const. (1968).

FN1. In fact, because the county courts had jurisdiction over probate matters and only circuit courts had jurisdiction to determine real property rights such as homestead, see Spitzer v. Branning, 135 Fla. 49, 184 So. 770 (1938), any proceeding to establish homestead had to be brought separately, outside of the probate estate. In 1976, jurisdiction over probate was transferred to the circuit courts, such that a circuit court could conceivably have general jurisdiction over both the homestead real property and the probate estate. See Cavanaugh v. Cavanaugh, var sc_project=725110; var sc_partition=6; var sc_security="f8a2fd19";