Have You Updated Your Will?

Over 80% of those with Wills or Living Trusts have not reviewed or updated them within the past 5 years. That is a mistake. It is a shame to waste the time and money for the documents and allow them to become outdated. Laws and tax considerations change. And they certainly have in the past 5 years. Call me, I can help.

Maybe you’ve gotten divorced or you have other people you’d like to take care of financially for whom you did not provide in your last Will.

Failure to update your Will can result in some, if not all, of your money going to “the wrong people”.

And if you are one of the many who does not even have a Will, do not procrastinate any longer. Do you what you should do!

More on Life Estates

There are two different types of life estates. The first is called “life estate with powers”. As discussed last week, a life estate can allow a person to live in the home while transferring eventual ownership to children, for instance, when the homeowner passes away. The “life estate with powers” gives the owner the right to change his mind if he decides he does not want to leave the property to the individuals named in the deed, or if he wants to sell or otherwise dispose of the property before he dies. Simply put, the term “with powers” means that the homeowner is not giving up the potential to exercise full power over the real estate by changing his mind.

The second type of life estate is known as “without powers”. That means that the life estate transferring eventual ownership to someone else is an irrevocable transfer. That is to say, unlike a life estate “with powers”, this type of life estate does not allow the homeowner to change his mind once the life estate deed is signed.

Because of these differences, a life estate with powers would appear to be the best way to go. However, there is a glaring exception. And that is if a person contemplates being on Medicaid, retaining a life estate with powers would affect the person’s eligibility for Medicaid. That is so because the real estate would be considered an asset of the Medicaid applicant since he has ultimate control over the real estate. By contrast, a life estate without powers, since it is an irrevocable gift, means that the only ownership interest that the applicant has is the right to live in the property. The value of that interest is considerably less than, for instance, the power to sell the real estate.

Transferring Partial Ownership Interest to Your Children While Retaining Your Right to Live There

Last week, I discussed the dangers of transferring one’s house to children outright. However, it is possible for you to transfer partial ownership interest to your children which will result in their being the complete owners of your property after you die or give up your right to live there.

It is called a life estate. In this form of real estate ownership, you can transfer full ownership of the house to your children (or anyone else for that matter) at the event of your death while retaining the right to live in your home for the balance of your life (“life estate”).

Think of it as lifetime tenancy. In the normal rental transaction, a tenant has the right to occupy property for a specified period of time either in months or years. A life estate tenancy is for the duration of one’s life. Although your children may be designated as the full owners of the property upon your passing, they have no rights to the property while you are alive.

Transferring your real estate to your children while retaining a life estate is the best way to transfer real estate to your children while protecting your right to remain in the home.

Another option that is popular is to add a child to your deed as a co-owner and include language in the deed designating that the survivor will inherit the entire property. There is a danger to doing that that most people do not appreciate. If you transfer any portion of your immediate ownership rights in the real estate, you are transferring the right to sell that interest. As a practical matter, if you and a child for instance, have a falling out, that child can put his 50% interest on the market. That means that there would be a likely co-owner who is a stranger. The more likely scenario is that the entire home would be put on the market and sold so that the child could take his share from the proceeds. That would leave you without a home.

Is It a Good Idea to Transfer Ownership of Your Home to Your Children?

Usually not. You may want to do so because you wish to avoid probate and have your children be secure in the knowledge that the home is theirs. Further, they may have promised to let you live there as long as you want or can.

WARNING! If you give up all ownership in your home, you no longer have a right to live there.

Your children may display selfishness and greed that you would have considered unthinkable, but we know it happens all the time. What are you going to do if the house is sold out from under you?

And what if the owners experience serious debt problems and the creditors go against the home (remember, you no longer own it)? Where will you live after you’re forced out?

Please don’t misunderstand. Most children would not abuse a parent’s trust, but are you willing to bet your home on the belief that such trust will not be violated?  The temptation of money can cause even loved one to do things “out of character”.  There are better options which may allow you to “have your cake and eat it, too”. I will discuss those in next week’s blog.