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Trust administration can be a lengthy process

By Staff | Nov 27, 2019

Dear Mr. Feichthaler:

My father owned a house in Cape Coral through his revocable trust, which stated that the property would be transferred to me upon his death, subject to the existing mortgage. He passed away in August, and the successor trustee (my brother) has not signed the deed over to me yet. I have told him that it is important that I take title before the end of the year so I can claim homestead on the property, but he is concerned there may be a debt or tax responsibility that may be in excess of the cash in the trust.

Is there anything I can do to compel him to sign the deed over now?

– Michelle S.

Dear Michelle,

On its face, the Trustee will be obligated to transfer the property to you. This has the potential to be done quickly, however the Trustee must be cautious on several fronts. First, is there a potential challenge to the trust documents, either by beneficiaries or those left out of the trust? Second, are there debts to the trust that may partially or totally consume the value of the property that is noted to be given to you? There are other issues that may give the Trustee pause before making any distributions.

If the Trustee is confident that the property will not be needed to satisfy debts and it will not be challenged, the Trustee should sign over the property via Trustee’s Deed efficiently. It is generally accepted in Florida that a trust administration can take 12-18 months, so the fact that the distribution has not been made in three months is not illegal or inappropriately delayed.

Ideally, you would impress upon your brother the importance of a transfer during this calendar year to allow for the homestead, and he will have a comfort level in making the transfer. You could even make an agreement with the trust that you would transfer it back should the unlikely event of additional debts arise.

I hope you and your family had a very pleasant Thanksgiving.

Eric P. Feichthaler has lived in Cape Coral for over 30 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 the Cape Coral Caring Center, Cape Coral Historical Museum, and Cape Coral Kiwanis. He has been married to his wife, Mary, for over 18 years, and they have four children together. He earned his board certification in Real Estate Law from the Florida Bar. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator.

Mr. Feichthaler can be reached at eric@capecoralattorney.com, or (239) 542-4733.

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.