Eric P. Feichthaler

Dear Mr. Feichthaler:

I bought a property with my brother about 20 years ago, and we held the property as joint tenants with rights of survivorship. A few years ago, I wanted to transfer my interest in the property to my two children, which I did, retaining a life interest in the property. Two years ago, my brother died, and I assumed I would now own the entire property. However, the property appraiser still has my brother listed as part owner. I thought I was avoiding the need for probate with the joint tenancy, did I do something wrong?

Wendy A.

Dear Wendy:

I always appreciate when family members attempt to work together for a good result. You initially took title with your brother this way in a form that would not require probate if either of you died. This method can save tens of thousands of dollars compared to probate costs. I am not clear why you transferred the property to your kids and retained the life estate, I assume you wanted to continue living there, but also provide your kids peace of mind that they would own your interest in the property after you die.

Unfortunately, your intent will likely not be the result here. When you deeded your half of the property to your children, and retained the life interest, the joint tenancy you had with your brother was eliminated, and replaced with a tenants in common ownership. That means that each side had a 50% undivided interest in the property, with no passing of the property to the survivor.

When your brother died, his estate would now be considered the owner, and a probate is likely necessary to pass his interest. Whom it will go to will depend on whether he had a spouse living or children, as well as what his Last Will and Testament may say. You should speak with an attorney to determine the status of the half owned by your brother, including determining who is entitled to the 50% of the home. Once this is done, depending on who inherits it, there may be an opportunity to negotiate acquiring the other half.

Homes and other real estate are too valuable to take chances with deeds. Based on what you have said, the actions taken will not lead to the result you or your brother intended.

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.

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.