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Two ways to avoid probate for your home

February 1, 2019
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Dear Mr. Feichthaler:

My husband and I relocated this month from Indiana to Cape Coral. We both have in our wills that all of our property should go to our spouse first, then to our daughter Katie when we both pass. We want to make sure that our house in Cape Coral goes to her without probate. Will our Indiana will work?

- Lily N.

Dear Lily,

Welcome to Cape Coral! It sounds like you have worked hard to prepare for your family's future, which is great. Typically, a will that has been properly drafted, signed and witnessed in the previous state will be considered valid in Florida. However, the will, by itself, will not result in the house (or other assets) avoiding probate. If either of you passed away, the surviving spouse would own the home, without the need for probate, since you hold the home as husband and wife. However, on the second to pass, if the property itself is not titled in a way to go directly to your daughter, probate will be required. There are two ways you can avoid probate for your home. I often speak of enhanced life estate deeds, which are the most cost-effective means to avoid probate. This deed retains full authority and control over the property, including the ability to mortgage or sell, and provides for a direct ownership by your daughter if you both die. The other method is to create a living, or revocable, trust to hold this property and other assets. You will want to seek the advice of an attorney to determine which method is best suited for your situation.

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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