Asked in Estate Planning, Real Estate Law and Probate for Florida

Q: Who gets a house upon the demise in this situation?

My grandfather wants to remove my aunt from his deed. He has listed my mother as his beneficiary in his trust and the house is listed in the trust. My question is, since my aunt is listed on the deed , who will get the house? Does the trust take precedence over the deed? My aunt is not complying with being removed from the deed and my grandfather is too elderly to make it happen. Can my mother act as his POA (power of attorney) ?

2 Lawyer Answers
Phillip William Gunthert
Phillip William Gunthert
Answered
  • Estate Planning Lawyer
  • Orlando, FL
  • Licensed in Florida

A: You need to speak with a Florida Estate Planning and Probate Attorney and get a copy of the current deed and have it reviewed. Based on the type of deed and how the property is held will determine what can or needs to be done. Generally speaking, a valid deed will be enforced above a Will and Trust if the Deed is properly drafted and legal. Ownership will be determined based on the deed and precisely how it is held, your grandfather may or may not be able to remove the aunt from the property. For example, if it is an Enhanced Life Estate Deed (Ladybird Deed), then the answer is generally yes that changes can be made by your grandfather, in some other circumstances possibly as well. If it does not fall into one of those types, then your grandfather may own the property equally with the aunt and unless she agrees to a deed change then there is nothing that can be done other than deal with her as a part owner of the property. Also, if the property is Homestead this may change the answer as well based on if there is a surviving spouse. The Power of Attorney may or may not allow for changes and they may or may not be effective and or enforceable. At this point, even if you could use the POA for anything, issues would be raised regarding your grandfather's mental capacity and the possibility of undue influence even if you could make changes because of his age and mental capacity. I will also add, even if you could use the POA to make changes, the POA is/must be used for the benefit of the person (your grandfather) who gave the POA, so you can imagine the issue and problems that can and likely will arise if your mom used the POA to put the property into her name when there are questions about your grandfather's mental ability and capacity, you can just imagine this slipper slope that is starting here. You need to review the Deed, Trust, POA and get hold of a Florida Attorney to start and get more specific advice based on these reviews and additional precise details you can provide of all surrounding circumstances.

Bruce Alexander Minnick and Barry W. Kaufman agree with this answer

Jane Kim
Jane Kim
Answered
  • Naples, FL
  • Licensed in Florida

A: The deed controls. In his trust, your grandfather can only distribute that much of the house that he actually owns.

Anthony M. Avery agrees with this answer

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