FL Decedents - Revision history

Joetschida: /* Trust Requirements */

2016-05-15T20:52:13Z

‎Trust Requirements

Joetschida: /* Property held in trust */

2016-05-15T20:51:01Z

‎Property held in trust

Joetschida: /* Examples. When title to homestead property is vested in a Trustee of a revocable Trust And the Settlor dies survived by a spouse and/or minor children */

2016-05-15T20:50:38Z

‎Examples. When title to homestead property is vested in a Trustee of a revocable Trust And the Settlor dies survived by a spouse and/or minor children

Joetschida: /* Examples. When title to homestead property is vested in a Trustee of a revocable Trust And the Settlor dies survived by a spouse and/or minor children */

2016-05-15T20:47:55Z

‎Examples. When title to homestead property is vested in a Trustee of a revocable Trust And the Settlor dies survived by a spouse and/or minor children

Joetschida: /* Examples. When title to homestead property is vested in a Trustee of a revocable Trust And the Settlor dies survived by a spouse and/or minor children */

2016-05-15T20:44:43Z

‎Examples. When title to homestead property is vested in a Trustee of a revocable Trust And the Settlor dies survived by a spouse and/or minor children

Joetschida: /* Examples. When title to homestead property is vested in a Trustee of a revocable Trust. If the Settlor dies survived by a spouse and/or minor children, the homestead devise restrictions discussed above would apply. */

2016-05-15T20:41:09Z

‎Examples. When title to homestead property is vested in a Trustee of a revocable Trust. If the Settlor dies survived by a spouse and/or minor children, the homestead devise restrictions discussed above would apply.

Joetschida: /* Examples. When title to homestead property is vested in a Trustee of a revocable Trust. If the Settlor dies survived by a spouse and/or minor children, the homestead devise restrictions discussed above would apply. */

2016-05-15T20:39:18Z

Joetschida: /* Property held in trust */

2016-05-15T20:37:40Z

‎Property held in trust

Joetschida: /* Homestead Devise Restrictions Applied To Trusts */

2016-05-15T20:33:41Z

‎Homestead Devise Restrictions Applied To Trusts

Joetschida: /* Homestead Devise Restrictions Applied To Trusts */

2016-05-15T20:29:26Z

‎Homestead Devise Restrictions Applied To Trusts

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 ***Trust Certificate for the surviving spouse’s Trust.
-==Trust Requirements==
+===Trust Requirements===
-If record title is vested in a Trustee of a Trust and there is evidence that the Settlor/Trustee is dead, make the following requirements:
+*If record title is vested in a Trustee of a Trust and there is evidence that the Settlor/Trustee is dead, make the following requirements:
+**Original Trustee alive:  Deed from Trustee individually and as trustee of the trust.  Joined by spouse if married and if the property is the Trustee’s homestead.
+**Original trustee Dead  - See below:
 *If record title is vested in a Trustee of a Trust and there is evidence that the Settlor/Trustee is dead, make the following requirements:
 **If the property was NOT the homestead of the deceased/Settlor/Trustee

@@ Line 180: / Line 180: @@
 ***Affidavit Confirming Heirs.  Instead of requiring a probate on the deceased husband/Settlor/Trustee, we will accept an Affidavit from the surviving spouse and all of the children of the deceased Settlor/Trustee confirming that those children are all of the children [lineal heirs] of the deceased husband/Settlor/Trustee.  The Affidavit must be recorded.
 ***Trust Certificate signed by the Successor Trustee of the husband’s Trust.  Attach pages from the Trust confirming that upon the death of the husband/Settlor/Trustee, the Trust transferred 100% fee title in the homestead to the Settlor’s spouse.  The Trust Certificate must be recorded.
 ***Trust Certificate for the surviving spouse’s Trust.
-−
 ==Trust Requirements==
 If record title is vested in a Trustee of a Trust and there is evidence that the Settlor/Trustee is dead, make the following requirements:

@@ Line 172: / Line 172: @@
 *Example Four.
-Title is vested in husband and wife as Trustees of their separate trusts.  They are both Settlors of their separate Trusts.  Husband dies survived by his spouse and adult children.  As to title vested in the husband’s Trust, we have the same result as in Examples 1 and 2.  Since there are no minor children, the only devise restriction that applies is the Spouse Restriction.  Remember “Spouse = Spouse Only”.  So, as in Examples 1 and 2, you have to view the husband’s Trust as if it is a Will to determine if, upon the death of the Settlor, the Trust transfers the homestead to the Settlor’s spouse as to the one-half interest owned by the deceased husband/Settlor/Trustee.  If the Trust does not clearly give the homestead to the surviving spouse upon the death of the husband/Settlor/Trustee , the “Spouse Only” devise restriction would apply because the only person that the homestead can be transferred to through the Trust, in this situation, is the surviving spouse of the deceased husband/Settlor/Trustee.  If the Trust does not clearly give the homestead to the surviving spouse of the deceased husband/Settlor/Trustee, the attempted transfer of the homestead through the Trust to people other than the spouse, or of less than a full 100% fee interest to the surviving spouse, would fail and the homestead would pass like intestate property pursuant to F.S. 732.401(1) to the surviving spouse for life and a remainder to the adult children.
+**Title is vested in husband and wife as Trustees of their separate trusts.  They are both Settlors of their separate Trusts.  Husband dies survived by his spouse and adult children.
+***As to title vested in the husband’s Trust, we have the same result as in Examples 1 and 2.  Since there are no minor children, the only devise restriction that applies is the Spouse Restriction.  Remember “Spouse = Spouse Only”.  So, as in Examples 1 and 2, you have to view the husband’s Trust as if it is a Will to determine if, upon the death of the Settlor, the Trust transfers the homestead to the Settlor’s spouse as to the one-half interest owned by the deceased husband/Settlor/Trustee.  If the Trust does not clearly give the homestead to the surviving spouse upon the death of the husband/Settlor/Trustee , the “Spouse Only” devise restriction would apply because the only person that the homestead can be transferred to through the Trust, in this situation, is the surviving spouse of the deceased husband/Settlor/Trustee.  If the Trust does not clearly give the homestead to the surviving spouse of the deceased husband/Settlor/Trustee, the attempted transfer of the homestead through the Trust to people other than the spouse, or of less than a full 100% fee interest to the surviving spouse, would fail and the homestead would pass like intestate property pursuant to F.S. 732.401(1) to the surviving spouse for life and a remainder to the adult children.
- 			a. Who do we need deeds from?
+***Who do we need deeds from?
-. Surviving Spouse - individually and as successor Trustee of 					    the deceased spouse’s Trust
+****Surviving Spouse - individually and as successor Trustee of the deceased spouse’s Trust
-. Surviving Spouse - individually and as Trustee of her Trust
+****Surviving Spouse - individually and as Trustee of her Trust
-. Children of the deceased husband/Settlor/Trustee
+****Children of the deceased husband/Settlor/Trustee
+***Affidavit Confirming Heirs.  Instead of requiring a probate on the deceased husband/Settlor/Trustee, we will accept an Affidavit from the surviving spouse and all of the children of the deceased Settlor/Trustee confirming that those children are all of the children [lineal heirs] of the deceased husband/Settlor/Trustee.  The Affidavit must be recorded.
-			b.	Affidavit Confirming Heirs.  Instead of requiring a probate on the deceased husband/Settlor/Trustee, we will accept an Affidavit from the surviving spouse and all of the children of the deceased Settlor/Trustee confirming that those children are all of the children [lineal heirs] of the deceased husband/Settlor/Trustee.  The Affidavit must be recorded.
+***Trust Certificate signed by the Successor Trustee of the husband’s Trust.  Attach pages from the Trust confirming that upon the death of the husband/Settlor/Trustee, the Trust transferred 100% fee title in the homestead to the Settlor’s spouse.  The Trust Certificate must be recorded.
+***Trust Certificate for the surviving spouse’s Trust.
-			c.	Trust Certificate signed by the Successor Trustee of the husband’s Trust.  Attach pages from the Trust confirming that upon the death of the husband/Settlor/Trustee, the Trust transferred 100% fee title in the homestead to the Settlor’s spouse.  The Trust Certificate must be recorded.
+==Trust Requirements==
 If record title is vested in a Trustee of a Trust and there is evidence that the Settlor/Trustee is dead, make the following requirements:

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 ***Record a Trust Certificate signed by the Successor Trustee.
-.  Example Three.
+*Example Three.
-Title is vested in husband and wife as Co-Trustees of their revocable trust.  They are both Settlors of the Trust.  Husband dies survived by his spouse and adult children.  We have the same situation as in Examples 1 and 2 except one fact regarding the Trust will be changed below.  As in Examples 1 and 2, since there are no minor children, the only devise restriction that applies is the Spouse Restriction.  Remember “Spouse = Spouse Only”.  So, as in Examples 1 and 2, you have to view the Trust as if it is a Will to determine if, upon the death of the Settlor, the Trust transfers the homestead to the Settlor’s spouse.  The one fact that is different here from Examples 1 and 2 is that in this example the Trust expressly transfers the homestead to the surviving spouse after the death of the first Settlor/Trustee to die.  Article X, Section 4(c) of the Florida Constitution and F.S. 732.4015(1), provide that: “the homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except the homestead may be devised to the owner's spouse if there is no minor child.”  In this Example, there are no minor children so the disposition through the Trust to the surviving spouse is valid.
+**Title is vested in husband and wife as Co-Trustees of their revocable trust.  They are both Settlors of the Trust.  Husband dies survived by his spouse and adult children.
-			a. Who do we need deeds from?
+*Example Four.
 Title is vested in husband and wife as Trustees of their separate trusts.  They are both Settlors of their separate Trusts.  Husband dies survived by his spouse and adult children.  As to title vested in the husband’s Trust, we have the same result as in Examples 1 and 2.  Since there are no minor children, the only devise restriction that applies is the Spouse Restriction.  Remember “Spouse = Spouse Only”.  So, as in Examples 1 and 2, you have to view the husband’s Trust as if it is a Will to determine if, upon the death of the Settlor, the Trust transfers the homestead to the Settlor’s spouse as to the one-half interest owned by the deceased husband/Settlor/Trustee.  If the Trust does not clearly give the homestead to the surviving spouse upon the death of the husband/Settlor/Trustee , the “Spouse Only” devise restriction would apply because the only person that the homestead can be transferred to through the Trust, in this situation, is the surviving spouse of the deceased husband/Settlor/Trustee.  If the Trust does not clearly give the homestead to the surviving spouse of the deceased husband/Settlor/Trustee, the attempted transfer of the homestead through the Trust to people other than the spouse, or of less than a full 100% fee interest to the surviving spouse, would fail and the homestead would pass like intestate property pursuant to F.S. 732.401(1) to the surviving spouse for life and a remainder to the adult children.

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 ====Examples.  When title to homestead property is vested in a Trustee of a revocable Trust And the Settlor dies survived by a spouse and/or minor children====
-=====Example One=====
+*Example One
 **Title to homestead property is vested solely in a Trustee of a revocable trust, who is the Settlor of the Trust.  The Settlor dies survived by a spouse and adult children.
 ***Since there are no minor children, only the spouse devise restriction applies. Remember “Spouse = Spouse Only”.  So, you have to view the Trust as if it is a Will to ascertain whether the Trust expressly transfers complete ownership of the homestead property to the Settlor’s spouse on the death of the Settlor.  If the Trust does not clearly transfer a 100% ownership interest in the homestead to the surviving spouse upon the death of the Settlor, the “Spouse Only” devise restriction applies because the only person that the homestead can be transferred to through the Trust, in this situation, is the spouse of the Settlor.  If the Trust does not clearly give the homestead to the surviving spouse upon the death of the Settlor, the attempted transfer of the homestead through the Trust to people other than the spouse would fail, and the homestead would pass like intestate (no Will) property, pursuant to F.S. 732.401(1), to the surviving spouse for life and the remainder interest to the adult children.  In a non-Trust situation, pursuant to F.S. 732.401(2), the surviving spouse may elect to take an undivided one-half interest in the homestead in lieu of the life estate, it is not clear as to whether that election is applicable in a trust situation.  However, when the surviving spouse deeds out, we don’t want the deed to limit the conveyed estate to a “life estate”, the deed should be for a full fee interest.
@@ Line 153: / Line 153: @@
 ***Record a Trust Certificate signed by the Successor Trustee.
-.  Example Two.
+*Example Two.
-Title is vested in husband and wife as Co-Trustees of their revocable trust. They are both Settlors of the Trust.  The Husband dies survived by a spouse and adult children.  We have the same result as in Example No. 1.  Since there are no minor children, the only devise restriction that applies is the Spouse Restriction.  Remember “Spouse = Spouse Only”.  So, as in Example No. 1, you have to view the Trust as if it is a Will to see if upon the death of the Settlor, the Trust gives the homestead to the deceased Settlor’s spouse.  If the Trust does not clearly give the homestead to the surviving spouse upon the death of the Settlor, the “Spouse Only” devise restriction would apply because the only person that the homestead can be transferred to through the Trust in this situation is the surviving spouse of the deceased Settlor.  If the Trust does not clearly give the homestead to the surviving spouse, the attempted transfer of the homestead through the Trust of less than a 100% interest in the homestead to the Settlor’s surviving spouse would fail, and the homestead would pass, like intestate property under F.S. 732.401(1) to the surviving spouse for life and a remainder interest to the adult children.
+**Title is vested in husband and wife as Co-Trustees of their revocable trust. They are both Settlors of the Trust.  The Husband dies survived by a spouse and adult children.
+***We have the same result as in Example No. 1.  Since there are no minor children, the only devise restriction that applies is the Spouse Restriction.  Remember “Spouse = Spouse Only”.  So, as in Example No. 1, you have to view the Trust as if it is a Will to see if upon the death of the Settlor, the Trust gives the homestead to the deceased Settlor’s spouse.  If the Trust does not clearly give the homestead to the surviving spouse upon the death of the Settlor, the “Spouse Only” devise restriction would apply because the only person that the homestead can be transferred to through the Trust in this situation is the surviving spouse of the deceased Settlor.  If the Trust does not clearly give the homestead to the surviving spouse, the attempted transfer of the homestead through the Trust of less than a 100% interest in the homestead to the Settlor’s surviving spouse would fail, and the homestead would pass, like intestate property under F.S. 732.401(1) to the surviving spouse for life and a remainder interest to the adult children.
- 			a. Who do we need deeds from?
+***Who do we need deeds from?
+****Successor Trustee.   The successor trustee should convey individually and as successor Trustee.  However, if the Successor Trustee is NOT also a beneficiary of the trust, then the Successor Trustee will not have to execute the deed in his/her individual capacity.  The Trust Certificate will need to confirm that the 					Successor Trustee is NOT also a beneficiary of the trust.
-.  Successor Trustee.   The successor trustee should convey  					individually and as successor Trustee.  However, if the Successor 					Trustee is NOT also a	beneficiary of the trust, then the Successor 					Trustee will not have to execute the deed in his/her individual 					capacity.  The Trust Certificate will need to confirm that the 					Successor Trustee is NOT also a beneficiary of the trust.
+****Settlor’s Surviving Spouse
+****Settlor’s children (lineal descendants)
-.  Settlor’s Surviving Spouse
+***Affidavit Confirming Heirs.  Instead of requiring a probate on the deceased Settlor/Trustee, we will accept an Affidavit from the surviving spouse and all of the children of the deceased Settlor/Trustee confirming that those children are all of the children [lineal heirs] of the deceased Settlor/Trustee.  The Affidavit must be recorded.
+***Record a Trust Certificate signed by the Successor Trustee.
 .  Example Three.

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 **Title to homestead property is vested solely in a Trustee of a revocable trust, who is the Settlor of the Trust.  The Settlor dies survived by a spouse and adult children.
 ***Since there are no minor children, only the spouse devise restriction applies. Remember “Spouse = Spouse Only”.  So, you have to view the Trust as if it is a Will to ascertain whether the Trust expressly transfers complete ownership of the homestead property to the Settlor’s spouse on the death of the Settlor.  If the Trust does not clearly transfer a 100% ownership interest in the homestead to the surviving spouse upon the death of the Settlor, the “Spouse Only” devise restriction applies because the only person that the homestead can be transferred to through the Trust, in this situation, is the spouse of the Settlor.  If the Trust does not clearly give the homestead to the surviving spouse upon the death of the Settlor, the attempted transfer of the homestead through the Trust to people other than the spouse would fail, and the homestead would pass like intestate (no Will) property, pursuant to F.S. 732.401(1), to the surviving spouse for life and the remainder interest to the adult children.  In a non-Trust situation, pursuant to F.S. 732.401(2), the surviving spouse may elect to take an undivided one-half interest in the homestead in lieu of the life estate, it is not clear as to whether that election is applicable in a trust situation.  However, when the surviving spouse deeds out, we don’t want the deed to limit the conveyed estate to a “life estate”, the deed should be for a full fee interest.
 ***Who do we need deeds from in this Example?
 ****Successor Trustee.  The successor trustee should convey individually and as successor Trustee of the trust.  However, if the Successor Trustee is NOT also a beneficiary of the trust, then the Successor Trustee will not have to execute the deed in his/her individual capacity.  In that event, the Trust Certificate will need to confirm that the Successor Trustee is NOT a beneficiary of the trust.

@@ Line 142: / Line 142: @@
 *Under those sections, the surviving spouse would receive a life estate and the children would receive a remainder interest.  Even if the Trust provides that on the death of the Settlor the surviving spouse receives a life estate and the children receive the remainder interest, that distribution would fail even though the distribution under the intestate statutes ends-up the same way as provided for in the Trust.
-====EXAMPLES.  When title to homestead property is vested in a Trustee of a revocable Trust.  If the Settlor dies survived by a spouse and/or minor children, the homestead devise restrictions discussed above would apply.====
+====Examples.  When title to homestead property is vested in a Trustee of a revocable Trust.  If the Settlor dies survived by a spouse and/or minor children, the homestead devise restrictions discussed above would apply.====
 *Example One.
 **Title to homestead property is vested solely in a Trustee of a revocable trust, who is the Settlor of the Trust.  The Settlor dies survived by a spouse and adult children.
 ***Since there are no minor children, only the spouse devise restriction applies. Remember “Spouse = Spouse Only”.  So, you have to view the Trust as if it is a Will to ascertain whether the Trust expressly transfers complete ownership of the homestead property to the Settlor’s spouse on the death of the Settlor.  If the Trust does not clearly transfer a 100% ownership interest in the homestead to the surviving spouse upon the death of the Settlor, the “Spouse Only” devise restriction applies because the only person that the homestead can be transferred to through the Trust, in this situation, is the spouse of the Settlor.  If the Trust does not clearly give the homestead to the surviving spouse upon the death of the Settlor, the attempted transfer of the homestead through the Trust to people other than the spouse would fail, and the homestead would pass like intestate (no Will) property, pursuant to F.S. 732.401(1), to the surviving spouse for life and the remainder interest to the adult children.  In a non-Trust situation, pursuant to F.S. 732.401(2), the surviving spouse may elect to take an undivided one-half interest in the homestead in lieu of the life estate, it is not clear as to whether that election is applicable in a trust situation.  However, when the surviving spouse deeds out, we don’t want the deed to limit the conveyed estate to a “life estate”, the deed should be for a full fee interest.
- 			a. Who do we need deeds from in this Example?
+***Who do we need deeds from in this Example?
+****Successor Trustee.  The successor trustee should convey individually and as successor Trustee of the trust.  However, if the Successor Trustee is NOT also a beneficiary of the trust, then the Successor Trustee will not have to execute the deed in his/her individual capacity.  In that event, the Trust Certificate will need to confirm that the Successor Trustee is NOT a beneficiary of the trust.
-.  Successor Trustee.  The successor trustee should convey individually and as successor Trustee of the trust.  However, if the Successor Trustee is NOT also a beneficiary of the trust, then the Successor Trustee will not have to execute the deed in his/her individual capacity.  In that event, the Trust Certificate will need to confirm that the Successor Trustee is NOT a beneficiary of the trust.
+****Settlor’s Surviving Spouse – who is usually the successor trustee.
-.  Settlor’s Surviving Spouse – who is usually the successor 					     trustee.
+****Settlor’s children (lineal descendants)
-.  Settlor’s children (lineal descendants)
+***Affidavit Confirming Heirs.  Instead of requiring a probate on the deceased Settlor/Trustee, we will accept an Affidavit from the surviving spouse and all of the children of the deceased Settlor/Trustee confirming that those children are all of the children [lineal heirs] of the deceased Settlor/Trustee.  The Affidavit must be recorded.
+***Record a Trust Certificate signed by the Successor Trustee.
 .  Example Two.

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 *The Aronson case changed the way that Underwriters view homestead property held by a trustee of a revocable trust.  After Aronson, the title industry no longer views the deed into the trust as  automatically invalid if the settlor of the trust dies survived by a spouse.  Now, for purposes of analyzing what happens to title to homestead property held in a trust upon the death of the Settlor, the deed in to the trustee is viewed as valid and the Trust is viewed as if it is a Will.  For purposes of determining if one of the homestead devise restrictions was violated on the death of the Settlor, the title is viewed as if it is vested in the Settlor of the trust in his individual capacity rather than as Trustee of the trust.  Therefore, if the Settlor dies survived by a spouse and no minor children, the spouse devise restriction would apply and the Trust must be reviewed as if it was a Will to determine if, upon the death of the Settlor, the trust gives fee title to the homestead property to the Settlor’s spouse.  If the Trust distributes the homestead to somebody other than the settlor’s spouse, or gives the spouse less than a 100% fee interest in the homestead, that distribution would fail and the homestead would pass as intestate property under F.S. 732.4015(1) and 732.401(1).
-**Under those sections, the surviving spouse would receive a life estate and the children would receive a remainder interest.  Even if the Trust provides that on the death of the Settlor the surviving spouse receives a life estate and the children receive the remainder interest, that distribution would fail even though the distribution under the intestate statutes ends-up the same way as provided for in the Trust.
+*Under those sections, the surviving spouse would receive a life estate and the children would receive a remainder interest.  Even if the Trust provides that on the death of the Settlor the surviving spouse receives a life estate and the children receive the remainder interest, that distribution would fail even though the distribution under the intestate statutes ends-up the same way as provided for in the Trust.
 *Original Trustee alive:  Deed from Trustee individually and as trustee of the trust.  Joined by spouse if married and if the property is the Trustee’s homestead.

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 ==Property held in trust==
 ===Homestead Devise Restrictions Applied To Trusts===
-*Homestead Devise Restrictions.  The two devise restrictions under Article X, Section 4(c) of the Florida Constitution explained in  Probate/Homestead/Restrictions, apply even when title to homestead property is vested in a trustee of a revocable trust.
+*Homestead Devise Restrictions.  The two devise restrictions under Article X, Section 4(c) of the Florida Constitution explained herein in  Probate/Homestead/Homestead Law - The Rules Are Different/Restrictions On Devises of Homestead, apply even when title to homestead property is vested in a trustee of a revocable trust.
 **Spouse = Spouse Only.  This means that when the deceased title-holder is survived by a spouse and no minor children, the only person that the homestead can be devised to (gifted by a Will) is the spouse.
 **Minor = Nobody.   This means that when the deceased title-holder is survived by a minor child or minor children, whether there is also a surviving spouse or adult children, the homestead cannot be devised to anybody.
@@ Line 139: / Line 139: @@
 *In the case of Aronson v. Aronson, 81 So.3d 515 (3 DCA 2012), the homestead property was vested in Hillard Aronson as Trustee of the Hillard Aronson revocable trust.  Hillard was the settlor of the trust.  Hillard died survived by a spouse and adult children.   The Trust provided that on Hillard’s death, Hillard’s surviving spouse, Doreen Aronson, would receive a life estate and his two adult sons, James and Jonathan, would receive the remainder interest.  Due to the devise restrictions under Art. X, Section 4(c) of the Florida Constitution, the only person that the Trust could distribute the homestead to on the death of Hillard was his spouse, Doreen.  Since the Trust only gave Doreen a life estate rather than fee title when Hillard died, the 3d DCA held that title could not pass through the trust but passed under Florida’s intestate laws.  The 3d DCA held that “At the moment of Hillard’s death, his homestead property passed outside of probate, [citations omitted] in a twinkle of an eye, as it were, to his wife for life, and thereafter to his surviving sons, James and Jonathan per stirpes.”.  Ironically, Doreen ended up receiving what the trust had provided for i.e. a life estate, and the sons got the remainder interest.
-*The Aronson case changed the way that Underwriters view homestead property held by a trustee of a revocable trust.  After Aronson, the title industry no longer views the deed into the trust as  automatically invalid if the settlor of the trust dies survived by a spouse.  Now, for purposes of analyzing what happens to title to homestead property held in a trust upon the death of the Settlor, the deed in to the trustee is viewed as valid and the Trust is viewed as if it is a Will.  For purposes of determining if one of the homestead devise restrictions was violated on the death of the Settlor, the title is viewed as if it is vested in the Settlor of the trust in his individual capacity rather than as Trustee of the trust.  Therefore, if the Settlor dies survived by a spouse and no minor children, the spouse devise restriction would apply and the Trust must be reviewed as if it was a Will to determine if, upon the death of the Settlor, the trust gives fee title to the homestead property to the Settlor’s spouse.  If the Trust distributes the homestead to somebody other than the settlor’s spouse, or gives the spouse less than a 100% fee interest in the homestead, that distribution would fail and the homestead would pass as intestate property under F.S. 732.4015(1) and 732.401(1).  Under those sections, the surviving spouse would receive a life estate and the children would receive a remainder interest.  Even if the Trust provides that on the death of the Settlor the surviving spouse receives a life estate and the children receive the remainder interest, that distribution would fail even though the distribution under the intestate statutes ends-up the same way as provided for in the Trust.
+*The Aronson case changed the way that Underwriters view homestead property held by a trustee of a revocable trust.  After Aronson, the title industry no longer views the deed into the trust as  automatically invalid if the settlor of the trust dies survived by a spouse.  Now, for purposes of analyzing what happens to title to homestead property held in a trust upon the death of the Settlor, the deed in to the trustee is viewed as valid and the Trust is viewed as if it is a Will.  For purposes of determining if one of the homestead devise restrictions was violated on the death of the Settlor, the title is viewed as if it is vested in the Settlor of the trust in his individual capacity rather than as Trustee of the trust.  Therefore, if the Settlor dies survived by a spouse and no minor children, the spouse devise restriction would apply and the Trust must be reviewed as if it was a Will to determine if, upon the death of the Settlor, the trust gives fee title to the homestead property to the Settlor’s spouse.  If the Trust distributes the homestead to somebody other than the settlor’s spouse, or gives the spouse less than a 100% fee interest in the homestead, that distribution would fail and the homestead would pass as intestate property under F.S. 732.4015(1) and 732.401(1).
 *Original Trustee alive:  Deed from Trustee individually and as trustee of the trust.  Joined by spouse if married and if the property is the Trustee’s homestead.