Eric P. Feichthaler

Dear Mr. Feichthaler:

My husband and I recently retired and have relocated to Cape Coral. We love it! Our new neighbors have told us it is vital to have an estate plan to avoid probate on our home, and some have suggested we add our son, who is our only heir, as owner of our home to avoid probate. Is this a good idea?

Danielle S.

Dear Danielle:

Welcome to Cape Coral! If traffic is any indication, you are among many that have chosen Cape Coral as their new place to live. Especially this time of year, the weather cannot be beat.

Many new residents do not take the time you are to confirm how the law works in Florida relating to their homes and other assets. Ignoring our laws can lead to a lot of unwanted expense and stress to heirs, in this case your son. I commend you on asking these questions.

Estate planning is important for all assets. However, with your home likely being among your most valuable assets, attention to how your home is titled is vital. If you hold your home with your husband, there will be no probate required if one of you passed away. Many of my clients prefer to plan ahead for the potential of both dying in an accident or in close time to one another. Through a living trust or an Enhanced Life Estate Deed, probate can be completely avoided on the home. If you elect to have a living trust, nearly all of your assets can be contributed to it, including all real estate and financial accounts. This can be particularly useful in situations where you wish to manage assets for the benefit of others (whether your family, charities, or other beneficiaries), or where you have a large number of beneficiaries.

I typically advise against adding adult children or other beneficiaries to direct ownership of the home during your lifetime. It can create issues with homestead protection and property tax savings, and could really become an issue if you and your husband decided to sell, and your son had other thoughts. If you add your son to ownership, he will have equal say in what happens to the home today. There also could be documentary stamp (real estate transfer tax) consequences to adding him. Although adding your son as a joint owner would avoid probate, the problems and pitfalls of doing so make this option undesirable.

It will be most efficient to address your entire asset and family situation when you proceed to make a plan. Main considerations will be whom you wish to receive the benefit of your assets, who you will authorize to act on your behalf on health and financial matters if you cannot make them yourself, and other considerations.

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 Cape Coral 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, and Cape Coral Kiwanis. He has been married to his wife, Mary, for 22 years, and they have four children. He earned his board certification in Real Estate Law from the Florida Bar, and primarily practices in real estate law and wills and trusts. 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.