Milwaukee, WI asked in Real Estate Law for Wisconsin

Q: My father owns land in Puerto Rico penulas. He has the deed I believe and wants to pass the land to myself and child.

Can he write a will to do so or would we need to transfer the deed?

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1 Lawyer Answer
Thomas B. Burton
Thomas B. Burton
  • Eau Claire, WI
  • Licensed in Wisconsin

A: Is your father currently living in Wisconsin or in Puerto Rico? If he is living in Wisconsin, he can execute a Will that leaves the land to you at death. However, upon his death, this will require you to open two probates, one in Wisconsin for his Wisconsin property and a probate action in Puerto Rico in order to transfer title to the property to you and your child. If your Father lives in Wisconsin, a better option might be to execute a Revocable Living Trust, and have your father sign the deed transferring title to the land to the Trustee of the trust right now. Then when he passes, the title to the property would pass outside of probate (without needing to open a probate action in Puerto Rico) to whoever your father designates in his Trust. One advantage to passing property at death, is that you get new basis for capital gains tax purposes upon the death of the person who passes the property. If your Father currently resides in Puerto Rico, then he will need to execute a Puerto Rico Will stating what he wishes to happen to his property. I was in Puerto Rico in April attending a real estate investment conference and I talked to some local lawyers there and I am told there Trust code is not well developed. Therefore, a second option he might want to consider is forming a Trust formed in the mainland of the U.S., he can choose a state that makes sense to him, and then form a trust under the jurisdiction of the laws of that state (I recommend choosing a state without an inheritance tax, like Wisconsin), and then transfer title to the property to the trust while he is alive. This would also avoid the need for a probate in Puerto Rico on this property when he passes. However, any of these options will likely need the assistance of a Puerto Rico lawyer and Notary to prepare the deed to transfer the property to the trust. Puerto Rico follows the Spanish system regarding deeds, therefore it is a bit different than the laws of most of the mainland U.S. If you decide to go the Trust route, a good U.S. based lawyer can probably assist you with finding help in Puerto Rico to get the deed transfer accomplished to the Trust.

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