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Enhanced Life Estate Deed can help with property transfer

June 15, 2018
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Mr. Feichthaler:

I recently moved here from New Jersey, where I signed my last will and testament and other documents. The only asset I have is my home, and a small checking account. I want my only child, Michael, to get the house when I die. Should I add him as an owner?

- Stephanie F.

Dear Stephanie:

Welcome to Cape Coral! I hope you will find it as great as I do to live in. First, your will and other documents will be recognized in Florida so long as they were signed in accordance with New Jersey law. As long as the people you have listed as beneficiaries and other positions are the same, there is no need to change these documents on the basis of moving to Florida.

I appreciate your desire to make sure your son benefits from your home, but I generally advise against adding others as co-owners. First, adding him as a joint tenant (co-owner) with right of survivorship is considered a completed gift. There are potential tax implications to this. If you passed away and the property was only in your name, the built-in gains on the property would not be subject to income tax. With your son as half owner, he may have an unexpected income tax when he sells the property. Of greater concern, your son would now need to consent to any transfer or mortgage on the property. If you currently have a mortgage, you would need to check with your lender to see if they will allow this change they may require you to refinance. There is also the potential for your son's creditors to lien the property, especially the IRS.

There are a multitude of other reasons that it is not advisable to add your son to the ownership of the property. As referenced in previous entries, the Enhanced Life Estate Deed is a great way at address your concerns. It allows you to retain full control over the property, and retain your full homestead status, while allowing for a potentially probate-free transfer of the property at death.

Finally, as for the checking account, titling this in a similar way could be helpful. All you need to do is advise the bank you want to make the account "transfer on death" to your son, and they will provide you the forms to accomplish this.

A little planning can save your son a lot of stress and cost, while giving you peace of mind.

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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