Case Study

Estate Planning and Probate Administration for Florida Snowbirds

Do you winter in Florida? With a few legal maneuvers, you can save your family from probate-court hurdles. If you own a home or lot in Florida, consider probate-avoidance techniques:

  • Enhanced Life Estate Deed Real estate ownership where you (or you and your spouse) own the real estate for your lifetimes and retain the ability to sell or mortgage it at will. If you die, the real estate passes directly to beneficiaries listed on the enhanced life estate deed.
  • Transfer to a Revocable Trust A revocable living trust organizes assets owned during life and transfers them upon death. This trust is used to avoid probate. You may transfer Florida real estate into this trust. If you claim Florida residency, your trust must contain specific language to preserve your rights to the homestead real estate tax reduction. Sometimes your attorney may recommend keeping your home outside of the trust for Florida homestead creditor protection reasons. Revocable living trusts do not provide you with creditor protection during your lifetime.
  • LLCs If you lease Florida real estate to short-term or long-term renters, consider transferring the real estate to an LLC via deed. LLCs provides you with some creditor protection, and the real estate transfers on death to beneficiaries. Your attorney should review Florida business rules, and consider documentary stamp tax issues if there is a mortgage on the property.
  • Joint Ownership If you bought the real estate with your spouse, double check that your deed states that you are a married couple. This allows for “tenants by entirety” ownership, which means that your spouse will inherit the property without probate proceedings on your death. Before listing a second owner on your property, always consider (1) existing pre-nuptial agreements (or reasons that you maintain separate assets); (2) each party’s creditor and liability concerns; (3) long-term care/Medicaid planning; and (4) rights of the surviving owner if death occurs.
  • Mobile Homes Some mobile homes are “attached” to the real estate that they sit on and no additional planning is needed. For others, they may own the mobile home, but not the real estate that it sits on, or they may own both the mobile home and the real estate, but they are not legally “attached”. If the mobile home is not considered legally attached to the land, then there is a title, much like a car and this requires special planning.
  • Probate. If you die owning real estate in your name alone, your family will face probate court in the Florida county where you owned the real estate. For Florida residents, this may provide some creditor protection, but for most who maintain home state residency, this means your family may have proceedings in two states.
  • Recommendation: Hire an attorney licensed in both states, or have your attorney consult with a Florida-licensed attorney.

Sarah J. Corney is a Florida-licensed attorney associated with RCO Law in Ohio. Sarah assists snowbirds and their families with estate planning and probate matters.