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An attorney can help ensure overall estate plans

February 17, 2017
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Dear Mr. Feichthaler:

My father bought two building lots in Cape Coral almost 40 years ago. Thankfully, he is healthy and happy at 83 years old. He recently told me he wants to make sure his affairs are in order, and that these properties go to me when he dies. He does have a will that says everything he owns goes to me and my sister. Should he amend his will, or do something else?

- Tyler P.

Dear Tyler:

A common message I make to my clients is that planning now can save a lot of time, aggravation and money. It is great that your father wants to ensure his assets are appropriately distributed. There are some steps he should consider taking. First, let's take a look at the lots he owns. Assuming he is not married, and that the lots are in his name, these lots would be controlled by what it says in the will. So, if he passed away tomorrow, the properties would pass to you and your sister. Unfortunately, this would occur only after probate proceedings in the local courts. Probate can be time consuming and costly, and in many cases is unnecessary. The will is probated for any assets that are not directly given to beneficiaries.

The key, then, is to have assets going directly to beneficiaries whenever possible. In the case of the lots, your father has two options. My favored option, which is also least costly, is to execute an Enhanced Life Estate Deed. This deed provides the Grantor (your father) with all of the benefits and control of ownership that his current deed provides. However, he would also list you as the "remainderman," which is the person who would receive the property at his death. By executing this deed, the property passes outside of the probate estate. Since only you are listed, your sister would have no rights to the property, since the will only covers assets that are not directly given to beneficiaries.

Another option to avoid probate would be to form a grantor, or revocable, trust to manage all of the assets of your father. All assets in the trust would also pass to beneficiaries without probate. While costs are somewhat higher for a trust, this can be handy where the Grantor believes that management of assets will be needed after death for any reason, such as a beneficiary being a child.

I would advise your father speak to an attorney to ensure all of his assets are considered in his overall estate plan.

Eric P. Feichthaler has lived in Cape Coral for 28 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 continued his service to the community through his chairmanship of the Harney Point Kiwanis Club KidsFest from 2011-2015, which provides a free day of fun and learning to thousands of Cape Coral families, and funds numerous scholarships. He has been married to his wife, Mary, for 14 years, and they have four children together. Recently, he earned his board certification in Real Estate Law from the Florida Bar. He is also 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.



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