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Handwritten note not sufficient to give house to neighbor

June 16, 2017
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Dear Mr. Feichthaler:

I have been taking care of my elderly neighbor for about six months, including buying her groceries and cleaning her house. She has told me she is mad at her kids because they do not call often enough, and that she wants to give the house to me. She has written a note giving me the house when she dies and she signed it, with date. Will this be enough to transfer the house to me?

- Paul R.

Dear Paul:

That is great that you are helping a neighbor in their time of need. To answer your question, no, the handwritten note is not sufficient. This would be considered a holographic will. To be a valid will in Florida, two witnesses are required. I recommend to all clients that they prepare wills with an attorney as part of their estate plans so that their wishes are clear, and that the documents are prepared and signed correctly. As you might expect, many parents bequeath their homes to their kids when they die. If your neighbor signed a will now giving you the house, the kids will likely challenge the will. They could argue that she lacked the capacity to sign the will, or that you exerted undue influence over her affairs and caused her to sign the will. They could also argue that you have engaged in elder abuse by attempting to take her home (and possibly other items while you took care of her), which can bring both civil and even criminal penalties. I recommend to all of my elderly clients to obtain a letter from their doctor confirming they are capable of making and understanding major financial decisions like this, in case their actions are someday challenged.

Also, one item to consider is whether your neighbor has unsecured debts. If so, and this is her homestead, those debtors cannot collect against the house if given to the children of hers at death. However, if given to a non-family member like yourself, the exemption from creditor claims would no longer apply. She could cause a substantial or even complete loss of value by giving the property by will to you.

From a legal perspective, competent adults can gift anything they wish to anyone they wish for any reason. However, from a practical perspective, giving one's home to a neighbor that has helped or known them for a finite period of time will raise the suspicions of family members and possibly law enforcement. Consider what is in the best interests of your neighbor prior to attempting to receive a gift or bequest of her home.

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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