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Documents need to be carefully reviewed - Real Estate Law

September 23, 2019
By Eric P. Feichthaler , Cape Coral Daily Breeze

Dear Mr. Feichthaler:

When I purchased my house two years ago, I added my son to the title. My intent was to have ownership so that, if either of us died, the property would go to the other 100%. Well, my son died last year, and I am now selling the property. The law firm has advised that a probate is needed before the property can be sold, because we didn't hold jointly. Is this possible? Both of our names are on the title, and I don't want this property to go to his kids, since this was all my money used to buy it.

-Linda N.

Dear Linda:

The way you take title to property is incredibly important, and this is no exception. You wanted you or your son to take 100% ownership should anything occur to either of you. If you held as joint tenants with rights of survivorship, you would be the 100% owner today with the recording of a death certificate. However, it sounds like the property was held as "tenants in common", which means you each owned a 50% separate interest. This means that his heirs are likely entitled to half of the property. If he had a will, that would likely control the distribution. If no will, the 50% would pass to any children he had, in equal shares. Ultimately, you would share ownership with his children. If everyone gets along well, this may work fine, but if not

Even if you had put up all of the money to purchase the property, you would have to prove that placing him on title was not a gift, which would mean you would need to furnish some sort of proof, such as an agreement. Your situation demonstrates the need to carefully have documents reviewed to ensure your intent is met, from the signing of the contract to the names on the deed at closing. Not doing so can be costly.

One other potential here is that you did advise the title company to title it properly, and they simply didn't. If you can prove this, there may be an action for damages in negligence available against the company that handled the title work and closing.

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 18 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.

Mr. Feichthaler can be reached at, or (239) 542-4733.

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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