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A will won’t guarantee property transfer

August 31, 2018
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Mr. Feichthaler:

I have been told that if my will lists my daughter as my sole heir, she will get my house without needing probate. I am a widow and only have the one daughter. Is that right?

-Betsy M.

Dear Betsy:

Thank you for this question, which is one I hear a lot. It would seem that the will would be enough to avoid probate, but it is not. The will does not actually transfer ownership or title automatically. The transfer occurs through the probate process. As discussed in previous responses, probate can be time consuming and very expensive - probates generally cost 3 percent of the home value to complete, plus filing and notice costs. It can also take several months, potentially years, to complete.

I advise many clients to title their properties in a way to avoid probate. In many cases, an enhanced life estate deed is recommended. A deed is prepared noting who you want to receive the property upon death. When this occurs, the property will transfer automatically with the recording of a death certificate. A great benefit of this deed is that you retain total control and ownership of the property. If you decide to sell, you don't require anyone's permission or sign-off, and you keep all of the funds.

In situations where you do not want the property to immediately go to beneficiaries, a revocable trust is advised in some situations. The trust can be structured in any way you like, including having funds paid to your beneficiaries in installments, paying for specific items like education for kids or grandkids, or anything else you specify.

Generally, either of the above options will be a financial benefit to your family compared to going through probate.

Eric P. Feichthaler has lived in Cape Coral for over 30 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 continues his service to the community through the Cape Coral Caring Center, Cape Coral Historical Museum, and Cape Coral Kiwanis. He has been married to his wife, Mary, for over 17 years, and they have four children together. He earned his board certification in Real Estate Law from the Florida Bar. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is 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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