Eric P. Feichthaler

Dear Mr. Feichthaler:

I recently moved here from Wisconsin and had a will done there several years ago. I named my three kids as beneficiaries. I have read your columns about Enhanced Life Estate Deeds and want to make sure I avoid probate. However, one of my children has helped me a lot, both emotionally and financially, so I want to give the Cape Coral house to my daughter. If I have you prepare a life estate deed and it conflicts with my will, does this create a problem and put it right back into probate?

— Karissa S.

Dear Karissa,

People move from all over the country to Cape Coral, many of whom have a similar question. The good news is your Wisconsin will, so long as it was signed with the formalities required in Wisconsin, will be recognized in Florida. So, from an initial standpoint, if your beneficiaries, personal representatives or other wishes haven’t changed, then you are not required to execute a new will.

The Last Will and Testament addresses assets that are in your estate. My goal for clients is to eliminate the need to look at the will for most assets by titling them to pass directly to beneficiaries. As discussed in prior columns, the Enhanced Life Estate Deed is ideal to convey real property to heirs without any need for probate or court intervention. It should be noted that nearly any financial account can be similarly titled, so probate can be avoided on financial accounts.

When beneficiaries are specifically indicated on a life estate deed, they will own the property, subject to any existing liens like mortgages, with the recording of a death certificate. The property in this case will pass outside the will, so your provisions in the will do not apply to the transfer. Keep in mind there are some exceptions, for instance you cannot bypass your spouse or minor children on homestead property. In most instances, though, the life estate deed will work as described, and your property would not need to have any probate proceedings.

Although new documents are not always required when residents relocate to Florida, it is a good idea to review what was done to ensure it continues to serve your wishes. Also, advance directives like powers of attorney can be significantly different in Florida than other states, and may require updating. In your case, the Florida life estate deed you are considering will benefit your helpful daughter once signed and recorded.

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.