As a real estate attorney, one request I often receive from clients is to prepare a deed to transfer their real estate into either a trust (such a revocable trust for estate planning purposes) or an LLC (for liability purposes). At first glance, this may appear to be a simple request with no adverse effects or consequences. However, depending on when the property was acquired, transferring your property may have adverse effects on your owner’s title policy that you received when you purchased the property.

Florida Title Insurance Policy Forms

The Florida Office of Insurance Regulation (“Florida OIR”) governs the title insurance industry in several ways, including the rates charged and the title insurance policy forms issued by attorneys and title agents to purchasers of real estate.

In 2011, OIR approved a new title insurance policy form for both owner’s and lender’s policies that is known as the ALTA 2006 Form (“06 Form”). The 06 Form includes an expanded definition of “Insured” under the policy, including transfers by the Insured listed on Schedule A (“Named Insured”) of the policy into a trust if the grantee is a trustee or beneficiary of a trust created by a written instrument established by the Named Insured of the owner’s policy.

The 06 Form also expands the definition of “Insured” under the 06 Form to include the grantee of the Named Insured if the Insured on Schedule A wholly owns the stock, shares, membership, or other equity interests of the grantee.

Potential Pitfalls

Before 2011, title insurance agents were using the ALTA 1992 Form (“92 Form”) which contained a narrower definition of “Insured.” More specifically, the 92 Form defined “Insured” as the Insured on Schedule A of the owner’s policy (which is the name in which you took title) and those who succeeded to their interest by operation of law including heirs, distributees, devisees, personal representatives (of an estate), or corporate fiduciaries or successors. Simply stated, your title insurance coverage would pass to your heirs in the event of death.

Under the 92 Form, the definition of “Insured” does not expressly include entities (such as LLCs) where the Named Insured on the policy conveys the property to an LLC of which they are the sole member. Also, the 92 Form does not expressly include transfers from the Named Insured to a trustee of trust such a revocable living trust used in traditional estate planning.

Accordingly, if you took title to your property prior to 2011 and subsequently convey the property to your trust or a LLC, you may lose your coverage under your owner’s title policy.

Take-Away

There are many factors to weigh when transferring real estate and it is essential to understand the consequences of any potential transfer being considered. It is important, therefore, to have an attorney review your individual situation, including whether or not any proposed transfer would potentially create coverage issues with the title insurance company that issued your owner’s policy. If you have any questions or need assistance, please feel free to contact me at caleb.hinton@henlaw.com or by phone at 239-344-1125.