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Titling property and a living trust

April 13, 2018
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Mr. Feichthaler:

I recently formed a revocable living trust to place my assets in, as I have been told it will avoid probate. I am purchasing a new home, and the title company has suggested I title the property individually AND as trustee of the trust. Is this the best way to do it?

-Sam R.

Dear Sam:

The titling of the property can be very important, especially in avoiding the cost and hassle of probate. As discussed in previous answers, probate typically has fees of 3 percent of the assets of the estate, plus costs. I often recommend life estate deeds to my clients to have property pass directly to beneficiaries without probate. However, in many instances a living trust is helpful, especially if there are reasons to manage assets post-death. For instance, if a beneficiary is a minor, or has special needs, a trust is often the way to go.

However, by titling the deed as individually AND as trustee, a major benefit of the trust is lost. The portion of the interest that is attributed to you individually could be subject to probate proceedings, which is clearly not your intent. The title should likely read your name as trustee of the trust only. That way, the terms of the trust will dictate how the property will be passed to your intended beneficiaries, and likely avoid probate. I recommend you seek legal counsel to address your specific situation, so that you can maximize the benefit of the trust you have formed.

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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