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Attempt to transfer deed complicates matters

May 12, 2017
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Dear Mr. Feichthaler:

My mother and her sister took title to a Cape Coral lot many years ago. About 10 years ago, my mother signed a deed to transfer her half to a family trust. That deed had no witnesses. A few years later, she signed a quitclaim deed over to me for her half, but only did so from her individually, and not from the trust. She passed away recently, as has my aunt, and I would like to sell the property.

- Travis M.

Dear Travis:

First, my condolences on the passing of your mother. I am sure she would not want to create issues regarding her estate after her death, and it appears she attempted to make things as easy as possible. However, it sounds like she may have attempted these transfers without the assistance of a Florida attorney. Unfortunately, this will likely take several months to resolve, and significant legal costs. First, the way two people take title to property is very important. In most cases where sisters take title, it is desired that each of them own a separate 50 percent interest in the property. This means that, if one dies, the other does not take ownership of the property. Rather, the heirs of the decedent would take the 50 percent. Due to the time that has passed for the deed to go into the trust, Florida law may provide this deed is valid. This means a deed would be needed from the successor trustee of the trust, following the direction contained in the trust. If someone other than you is named as beneficiary of the trust, they may be in title, rather than you.

Also, the ownership interest by your aunt will also need to be resolved. A probate is likely needed to property title it to the heirs of your aunt. This is another situation where a small bit of planning would have been advisable. Under the worst case scenario, two probates may be needed, and/or a quit title lawsuit to clear title, after which time the property may not be wholly owned by you. These matters can be impacted by various issues, including timing, witnesses, legal descriptions and other problems with the deed.

For specific advice, you should seek review by a Florida attorney.

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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