Eric P. Feichthaler

Mr. Feichthaler:

My husband and I prepared a living trust many years ago. As part of the process and to avoid probate, we deeded the property to the trust. Last year, my husband passed away, which leaves me as the sole trustee of the trust. I would prefer to simplify things and remove the property from the trust. Am I empowered to do so, and what do I need to do to avoid probate? I want the home to pass to our only child upon my death. Thank you.

— Leah N.

Dear Leah:

My condolences to you on the loss of your husband. You both chose wisely to complete an estate plan that avoids probate on the property. If you leave the property in the trust, a probate would not be needed. Your successor trustee named in the trust would be tasked with following the instructions in your trust regarding what happens to the property. It is likely your only child is both the Trustee and sole beneficiary, based on the information provided.

Typically, you would be empowered to transfer the property as sole trustee, including to yourself or a third-party purchaser. You are likely able to transfer the property from the trust to you individually, and retain all homestead benefits. However, this action, without more, would lead to the property potentially going through probate to get to your only child. I have written a few times on the benefits of the Enhanced Life Estate Deed. For those who own properties in their individual names, signing this deed provides for the easy transfer of title upon the death of the owners without probate, while giving the grantor the full and absolute ownership of the property during their lifetime. Probate can be a very expensive and time consuming endeavor. Both the trust and the Enhanced Life Estate deed will avoid probate, but the latter will reduce administrative costs and time after your passing.

I would recommend seeking legal counsel to determine the way to best tailor your plan to meet your goals and expectations.

Eric P. Feichthaler has lived in Cape Coral for over 35 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 Museum of History, 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. He 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.