I purchased a home in 1998 as a single woman. I have one son. I married a man with two children in 2005.
I would like to add my husband to the deed with the ultimate ending that after both our passings, my son would inherit 50% of the house and my two step-children would inherit 25% each of the house. What is the best way to handle this. Tenants by Entirety, Tenancy in Common, Joint Tenancy w/ Right to Survivorship, Revocable Living Trust?
Keep the house in your name, give your husband a life estate and then Will your son 50% of the house and the other two 25%. Otherwise, just prepare a Will and put your wishes in the Will. The last thing you want is to get a divorce and then the house is disposed of in ways that may undermine your desire wishes.
You could do a few things. If you put your husband on the deed as tenant in common, when you die, your estate would own your half and your husband the other half. However, this could be problematic. If your son and your husband dont get along, your son could try to force a sale of the property to liquidate his interest. Vice versa if your husband dies first and you are dealing with his estate (his two children presumaby). You are also exposing the property to your son's and step children's creditors in the above event. Alternatively you could create a testamentary trust in your Will that says, when you die, if your husband is still alive, he gets to live there and on his death, the property passses to your son and steph children in the percentage you desire. A Revocable Living Trust would serve the same purpose. The only difference is that the Revocable Living Trust would be created now instead of on your death. You would deed the property into the trust. Either a testamentary trust or a Revocable Living Trust would give you the flexibility to allow your husband to live at the property during his lifetime or perhaps, if you so desire, allow him to sell it or access the equity in dire circumstances, such as for his health or welfare. A Revocable Living Trust is commonly used in lieu of a Will in circumstances where a person wants to avoid probate. It can be used, however, for these purposes. in any event, you will need an attorney to handle the transaction. Find someone competetnt in your area and have a consultation.
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A trust that gives each of you a life estate in the other's interest will
work. So will a deed where you are tenants in common (your interest goes to
your estate upon your death, not to the other owner) and in which you grant
to each other life estates. This should be done by a competent attorney.
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To avoid Probate, re-title the House into Your Revocable Living Trust (as your separate propery in the event of divorce). Put your wishes in the Trust's dispositive instructions so as to protect your son etc. I'd recommend you sit down with an Estate Planning attorney (easily found on Avvo.Com under 'Find-A-Lawyer') and get this documented right away. Good Luck !!
One way you may want to consider is to provide for a "Qualified Terminable Interest Property" trust ("QTIP trust") in your Will or revocable living trust which gives your husband all rights to the house for life, and upon his death divides the property among your son and stepchildren in the desired percentages. This will ensure that your wishes are carried out. In addition, it may be advantageous for estate tax planning purposes. Even if you do not contemplate having an estate that will be subject to federal estate tax (currently $5M+), keeping the house in your name may be useful for New York estate tax planning purposes, depending upon what other property you own and how it is titled.