Owner must have proof he has authority to sell the property
Dear Mr. Feichthaler:
I purchased my home with my wife five years ago, and titled it to a revocable trust. My wife passed away last year, and I now desire to sell the house and move into a condominium. I have been told that I need to provide a copy of the trust to prove that I have the authority to sell the property. I cannot find a copy anywhere! I prepared the trust with a document preparation service, so no lawyer has a copy, unfortunately.
-Wade F.
Dear Wade:
First, I am sorry for the passing of your wife. It sounds like you worked hard to plan so that no probate would be needed. You have heard correctly that any law firm handling a real estate closing will need to see proof that you have authority to sell the property. As mentioned in previous columns, there can also be issues when homestead property is in the trust. If the trust is not worded correctly, you may not have the authority to sell the property, and your children may have a vested right in the property. Generally, an attorney can work around these issues with affidavits from you, as well as deeds from your children divesting any rights they may have in the property. The alternative is to probate the interest of your wife or pursue a quit title action, both of which will take a few months or more. Hopefully, you can find the trust and the language provides that you have full title and control over the property. It is a good idea to have a place where all of your important documents can be found. If you have children that you trust, you can also provide them a copy as well just in case yours is destroyed or misplaced. This would include life insurance policies, deeds, etc. Trust and probate issues are complicated matters, and as I frequently say, a little planning now can save a lot of time, effort, and money later.
Eric P. Feichthaler has lived in Cape Coral for 28 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 14 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.