How to Avoid Probate on Resident Owned Mobile Home Park Share in Florida
If you are an owner in a typical resident owned mobile home park in Florida, your cooperative ownership interest is comprised of something called a “Proprietary Lease”. This Proprietary Lease, is often referred to as your park “share”. Your share, together with the title(s) to your manufactured home, essentially represent the total of your ownership interest in your “home and land” within the park. Your share entitles you to the exclusive use and possession of your lot, as well as a proportional share of ownership and use of the common elements of the park, such as the clubhouse and swimming pool.
On your death, your share in the park, and your title(s) to your home would have to be transferred in a manner similar to any other property you own. This typically means that a legal proceeding called “Probate” will be necessary. Probate, although not necessarily as awful as some would make it out to be, will almost certainly add time and expense to the process of transferring your assets to your heirs or beneficiaries. However, there are ways to minimize or avoid the necessity for Probate in order to transfer your share and manufactured home upon your death.
The simplest ways to keep your share and home out of Probate are:
Joint Ownership: If you own your share with another person, or persons, as either “Tenants by the Entirety” (this is joint ownership as “husband and wife”) or “Joint Owners with Rights of Survivorship” (also listed as “JTWROS”), then, in the event of the death of any one of the joint owners, the other owner(s) will automatically own the property. There is no probate necessary to transfer an asset as long one of the multiple joint owners remains alive. This is true, even if you have a Last Will which leaves the property to someone else. For purposes of the manufactured home titles only, it is typically enough to list each joint owner on the title(s) as “and”, or, “or”, (for example:” Joe Smith and Jane Doe”, or “John Smith or Jane Doe”).
Living Trust: A Living Trust (a/k/a Revocable Trust) is another way to keep assets out of Probate. Without going into a long explanation of what a Living Trust is, suffice to say that, if your share and title(s) are owned in the name of your Living Trust, they can typically transfer after your death to your beneficiaries without the necessity of Probate for these assets. However, setting up a Living Trust will almost certainly be more expensive than simply re-titling the ownership of your share
Either of the above options can be accomplished very easily while you are alive and mentally competent. Just having a Will (Last Will & Testament), listing a beneficiary of your share will not avoid Probate in and of itself, though it is certainly better in most instances to have a Will than to not have one.
If your resident owned share and mobile home are a second home or vacation home, the above options should work well for you. But there are some considerations which must be understood if your mobile home is your “homestead” under Florida law. Adding a joint owner might help avoid Probate in the future, but it might also cost you part of your yearly homestead property tax discount now if any of the joint owners do not also reside in the home with you. Further, most Florida lawyers no longer recommend putting your homestead property into a Living Trust due some negative developments in the treatment of trust owned homestead property under federal law.
My recommendation is that you discuss your specific situation with a Florida attorney who can assist you in creating the proper form of share ownership and estate planning to simplify the transfer of your mobile home and park share to your heirs or beneficiaries when that need eventually arises.
About the Author: David P. Folkenflik, Esq., is a lawyer who has been practicing in Pinellas County since 1993. Before opening his own office, he was a lawyer with Justin G. Joseph, P.A., in Tarpon Springs for 7 years. His primary office is now in the St. Petersburg suburb of Kenneth City, but he also meets with clients at his Palm Harbor office by appointment. He has received an “AV” Rating by Martindale Hubbell, and is an Accredited Business by The Better Business Bureau. Mr. Folkenflik’s main practice areas are estate planning, probate, and personal injury law.
Joint Ownership or Living TrustThe simplest ways to keep your share and home out of Probate are: Joint Ownership or Living Trust
What's the Best Option?Either of the above options can be accomplished very easily while you are alive and mentally competent. Just having a Will (Last Will & Testament), listing a beneficiary of your share will not avoid Probate in and of itself, though it is certainly better in most instances to have a Will than to not have one.