Avoiding probate can be very difficult—but it doesn’t have to be. Sometimes, parents will attempt to avoid probate by either (1) transferring their home to themselves and their children, or (2) transferring a life estate to themselves and a future interest to their children. While this can, and often does, avoid probate, it can create even bigger (and more expensive) problems in the future.
The problem often arises like this: as the parents grow older, they need one of their children to live with them to take care of them. Years later, the parents pass. The child who lived with the parents and took care of them now believes their right to the home trumps that of their siblings. And, because they’ve spent years living at the home, they prefer to live there rather than sell it. The other siblings, however, have an equal interest in the property and would like to sell it—but they cannot.
The law requires all siblings to agree on the sale of the property. If one sibling holds out, the sale of the home cannot take place. For the other siblings to sell the home, they have to initiate a partition action—i.e., a lawsuit that would force the sale of the home and split the proceeds equally.
The above scenario avoids probate but leads to other significant problems. So, what avoids both probate and the above scenario? A revocable trust. By transferring the property into a trust, the creator of the trust decides who makes the ultimate decision of selling or keeping the property. This way, after you’ve passed, the other siblings can’t hold out and prevent the sale of the property.
If we can help you or someone you know smoothly and peacefully transfer your assets and avoid probate, please contact us at (813) 244-7758 or Ross@RossSpanoLaw.com.