Setting up a revocable trust will avoid probate
Question: We own properties throughout the state of Florida, as well as in other states. All of the properties are titled to my husband and I. We have children and grandchildren we want to benefit from these properties when we die, and to have them managed by a trustee until our grandchildren reach the age of 25. If we set up a revocable trust, will the properties automatically be subject to the trust?
Answer: Revocable trusts are excellent vehicles for those who have multiple asset classes, particularly real estate. One of my primary objectives for clients is to avoid probate wherever possible. Probate can be expensive, time-consuming and create unnecessary stress, especially at a time when the family has just lost a loved one. When a revocable trust is formed and properly funded, probate can be avoided completely. You can designate what individuals or charities will be your beneficiaries, when they will receive assets or payments, and arranging for who will serve as trustee. Typically, we prepare a will package in conjunction with the revocable trust, which includes advance directives like Health Care Surrogate and Powers of Attorney.
Once the trust is formed, you will need to execute deeds transferring the properties into the trust. If you do not, your will may provide that the properties should go to the trusts after your death. However, a probate would be required unless you deeded the properties to the trust. A separate deed is required for each Florida county in which you hold property. Similarly, you will need to prepare deeds for the properties located in other states as well. As a revocable trust, you will not be required to obtain a new Employer Identification Number, and you can continue to use your social security numbers for purposes of your holdings.
You will need to take extra care on the potential transfer of your homestead property into the trust. There is evolving caselaw on the subject of homestead property that needs to be carefully reviewed prior to any transfer of homestead property into trust.
Eric P. Feichthaler has lived in Cape Coral for 27 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through his chairmanship of the Harney Point Kiwanis Club KidsFest, which provides a free day of fun and learning to thousands of Cape Coral families, and funds numerous scholarships. He has been married to his wife, Mary, for 13 years, and they have four children together. Recently, he earned his board certification in Real Estate Law from the Florida Bar. He is also a Supreme Court Certified Circuit Civil Mediator.
This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.