Can your home bypass probate via a trust?

Your family home has increased in value over the years, both monetarily and emotionally. Like a lot of other people, you may decide to use a revocable living trust to make sure that the home and certain other assets bypass probate entirely.

Unfortunately, just signing trust document alone won’t make a trust useful. The property’s deed, the trust’s terms and Florida’s homestead rules all matter. A plan that looks good on paper can leave your family with a title problem after you’re gone if you don’t take the right steps while you’re here.

What can go wrong?

One or more of the following issues can defeat the purpose of a trust meant to keep property out of probate:

• The home never gets transferred to the trust: You can name your home in your estate planning paperwork, but if the deed still shows you as the individual owner, it doesn’t belong to the trust and is still part of your estate.
• You’re relying on a pour-owner will: A pour-over will is a sort of “catch-all” that can capture and direct property into a trust after your death. However, too many people rely on that option without realizing that the will still has to go through probate before the transfer can be made.
• The trust is at odds with Florida’s homestead rules: Florida law has specific rules whenever a homestead’s owner dies and leaves a spouse or minor child behind. Putting a home in a trust doesn’t negate those rules. If the trust directs the property to someone else in a way that contradicts the law, your transfer may be invalidated. This is particularly important to know if you are on a second marriage and have children from an earlier relationship that expect to inherit the home.

There are alternatives to putting a home into a trust. Depending on your situation, you may benefit from an enhanced life estate deed (also called a Lady Bird deed), which can allow the home to pass to a new owner outside of probate while permitting you to retain control during your lifetime. Property owned jointly with a right of survivorship can also pass directly to a surviving owner.

There’s no perfect estate plan for everyone. Each option has trade-offs. The important thing is to discuss your options carefully with a skilled lawyer and to make choices based on your goals for your life and your loved ones.