Florida Homestead and Will Drafting: The Mandatory-Sale Trap

One of the most common—and most serious—Florida estate-planning errors involves mandatory sale language in a will.

If a will requires the executor to sell Florida homestead property, Florida law may treat the homestead as equitably converted into personal property as of the moment of death. Because the homestead exemption depends on the property retaining its character as real property, a mandatory-sale directive can undermine the exemption.

That result can be catastrophic:

• Homestead character is lost
• Constitutional protection may no longer apply
• Sale proceeds may become reachable by unsecured creditors

This outcome surprises many non-Florida practitioners because mandatory sale language can have the opposite effect in other jurisdictions.

Best-Practice Drafting Principles

When Florida homestead is involved:

• Avoid mandatory directions to sell homestead property
• Use discretionary powers of sale, if any
• Draft devises that preserve homestead character
• Coordinate will provisions with Florida domicile and homestead law

If a testator may relocate to Florida, will provisions that are protective elsewhere can unintentionally destroy homestead protection if not carefully conditioned.

Because laws in different jurisdictions can vary significantly, people who change domicile should review and update their estate plan.