Eric Feichthaler

Dear Mr. Feichthaler:

We have lived in Cape Coral for 31 years, and want to make sure our house goes to our two adult children when we die. I have heard that we need a trust to avoid probate, is this true?

— Nick and Barb F.

Dear Nick and Barb:

This is one of the most frequent questions asked from owners, and soon-to-be owners, of Florida property. If a home is owned by a husband and wife, and one spouse dies, the other will own the property with no legal process (probate) required. However, on the surviving spouse’s death, the house would go through probate unless steps are taken to avoid it. Probate is a court process that, eventually, leads to an order stating to whom the property will go to. Probate is time consuming and can be very expensive, and a proper plan to keep the probate court out of the process is vital.

It is true that forming a living (revocable) trust can be a good idea for some property owners. I advise my clients that trusts are very beneficial when there is a need to manage assets (rather than distribute them) after death. For instance, if your children were minors, you would want a trust in place to manage or sell the property, and have those funds managed for the benefit of the children until adulthood, or later. If post-life management is needed, a trust is the way to go, and you would deed your property to that trust.

However, the majority of my clients have no need to manage their assets after death, and would be happy for a seamless, cost-effective transfer of real estate to adult children. If that is the case, I prepare an Enhanced Life Estate Deed for them. This deed provides no immediate ownership interest to the children, maintains your current homestead and “Save Our Homes” savings and allows you to sell or mortgage the property without their approval. Basically, it is purely a contingent right to your children. If you both pass while owning the property, all that would need to be done to transfer ownership is recording the death certificates with the county.

Our firm’s probate section stays very busy serving families that did not put a plan together for their real estate and other assets. By taking steps to form a plan, you will save your kids the time, stress, and cost of legal proceedings.

Eric P. Feichthaler has lived in Cape Coral for over 33 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 20 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.

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.