Legal Question in Wills and Trusts in Florida

If the deed for the property is prepared so that the owners of the fee simple are your mother and certain children, with JROS (Joint Rights of Survivorship), then each person named is a joint owner until the property is transferred. Such joint property is not included in the estate which is subject to probate court administration but passes to any survivor(s).

OUCH! Your situation is very typical of leaping off a cliff without a parachute today and happens too often of late with people trying to avoid probate as their main and sometines only goal. I would assume you may have prepared and recorded the deed without legal counsel. Due to what was done and how it now reads you may wish to put the property back into your mother's name subject to any gift tax that may be imposed upon the re transfer - also this assumes that by filing a 709 gift tax return there will be no tax. The reasons I say this are many:

1. Your siblings may have lost the increased tax basis in the property when your mom dies - e.g. if she bought it originally or received from an estate at $20,000, and on her death it is worth $80,000. then by putting your names on it without getting paid for the same, she has made a gift and all of you take the property at the low tax basis your mother had originally/ 20,000, so that when it is sold you pay the capital gain tax on the gain of $60,000 e.g. perhaps 15% of the $60,000 increase in value or $9,000 instead of paying $0, The closing agent on sale will report this on the 1099 form when the latter closing occurs after sale. This may well be more costly than paying for probate itself!

2. The joint names may well prohibit your mom from receiving Medicaid (social Security) monthly amounts for her support due to the fact that she has too much property should she make application for the same at a later date. Had she left her name off it (suject to loss of HOmestead exemption etc which you must look at if it is her main residence) and if 5 years went by before she went into a nursing home, it would not prohibit her from qualifying for Medicaid. You may well have to have the siblings pay up to the full value of the property at that time before she would qualify for Government help.

3. Creditors of any of the siblings including the IRS can now reach the asset and take execution sale or partition lawsuit should they have a judgment against ANY of the siblings, before your mother dies! A judgment recorded into the property records would create a lien or "cloud on title" which is renewable in Florida. Further if applicable the IRS can file its Federal Lien against the property should any of the siblings be behind on their taxes!

4. Don't forget that should any of the sibling become incapacitated and not be competent sign or to sell their interest you then have several more problems including, possible partition by his/her guardian hence tied up in their Guardianship (before they die). Also don't forget how their interest will effect their share passing over to their estranged (divorce) spouse should they separate!

Enough said, you shoud seek competent help and pay for the same before you leap, if this has been helpful to you I would appreciate you indicating the same.