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A living trust will help your family avoid probate

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

Dear Mr. Feichthaler:

My wife and I have lived in Cape Coral for eight years, and are finally getting around to preparing an estate plan. Our main asset is our home, but we have some financial accounts as well. Some friends have told us the only way to avoid probate is a living trust. Sugges-tions?

-Steven N.

Dear Steven,

As mentioned in previous entries, probate is expensive and time consuming. The typical costs and fees associated with probate are well over $5,000, and can easily be in the five figures depending on the level of assets. I enjoy helping my clients avoid both the expense and time of probate. A typical probate takes six months.

Generally, almost all of your assets can be titled in a way to pass directly to your heirs or beneficiaries. This includes retirement and non-retirement and financial accounts. For real estate, I often recommend Enhanced Life Estate Deeds, which provide for the avoidance of probate, while retaining full and absolute control of the ownership of your home. The deed allows for sale or mortgage without the need to obtain permission from your heirs, and you can even revoke or amend it later if you so choose. With this deed, your family avoids probate, with less cost than forming a trust.

There are situations where placing your assets in a living, or revocable, trust would be beneficial. For instance, if you expect that the beneficiaries of your assets will be minor children when they receive these benefits, having a structure in place to manage the assets until they reach a certain age (25 or 30 is typical) can be very helpful to the goal of financially helping your family, while not allowing the money to be wasted. Another situation arises if a beneficiary could potentially have creditors. The trustee of your trust can be given wide latitude to not pay the beneficiaries in situations, including where the payment could be immediately seized by creditors or the government.

I would recommend you speak with an attorney and provide them all of the details relating to your specific situation, and you can move forward from there. Planning is one of the best gifts you can give your family.

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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