My wife and I have stated in our will that our house goes to all children but one of them is not to be made to leave.

Asked 10 months ago - Medford, MA

My question is this: can the rest of the children override this decision.

Attorney answers (8)

  1. Estela Matta

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    Answered . Unfortunately, the proposal you have stated is unworkable or at the very least creates problems down the road. As my colleagues have pointed out, you are essentially burdening all the siblings for the benefit of one. This is certainly contestable, and in all likelihood will incur a lot of cost and dissipation of the estate--not to mention the animosity it might fuel among the siblings. If your intentions are to protect one child, you should consider giving him/her a "life estate": the property is conveyed to the X for life, then to u, v, and z (whomever you wish, as remaindermen). This insures that child X can have use and enjoyment of the property for life, cannot alienate (sell) the property, and the remaindermen siblings will take the property at the end of the life term. The party with use and enjoy assumes all the responsibilities of ownership (taxes, maintenance, etc) as well as insuring the property is preserved for the remainders to take.
    You should definitely speak to an estate planning attorney to review your options and address your concerns more specifically. If this is already stated in your will, you must seriously reconsider what you have structured (and use a different lawyer, if this will was prepared by counsel). In my years of probating estates, I have found that most problems arise when the distributions, as expressed in the Will, were not properly screened by the the scribe attorney for feasibility and ease of probating.
    I urge you to consult a lawyer.

    This answer is provided for informational purposes only and it is not intended as legal advice. Additionally, this... more
  2. Brian C. Snell

    Contributor Level 15

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    Answered . If you are trying to be sure that one child is permitted to live at the house for his lifetime, then you want to give that child a life estate. However, understand that he will also be responsible for all expenses of the house. Additionally, the remaindermen could cause a problem if the life tenant doesn't take care of the property.
    Because you state this is in your Wills, I imagine you are working with an attorney. If that isn't the case, you should be.

    *** LEGAL DISCLAIMER I am licensed to practice law in the Commonwealth of Massachusetts and have an office in... more
  3. Denise Kent

    Contributor Level 9

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    Answered . This is what you have effectively done: made your children equally responsible for payment if water,sewer, taxes, maintenence, etc. for a property that they cannot live in or rent out. You have given them nothing but a burden, except for the lucky one who gets to live there. Oh, and if one of those kids gets divorced that house is joint marital property. [removed]

    Legal disclaimer: DISCLAIMER This answer is provided for educational purposes only. By using or participating in... more
  4. Steven Kelsey Hemingway

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    Answered . As you have described it, Attorney Kent is correct. In addition to this, however, without a condition in the deed, the rest of the children will certainly have the power to override that decision, even if they need to petition the court to partition the property, which they would have the right to do.

    There are options, though, to accomplish that goal. Use of a trust or giving one child a life estate are two of them. You need to consult an estate planning attorney to ensure that your wishes are followed. My firm certainly handles these matters, as do many attorneys you can find using the "Find a Lawyer" link above.

  5. Thomas C. Marino

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    Answered . As you can see from every attorney that has responded, the property bequeath to your children as you have describe it is not workable. Obviously there is some reason you wish to let one of your children have the benefit of living in your home after you both pass. You should really speak with one of the lawyers here who have responded and let them review your entire situation and help you achieve what you want. Otherwise your wishes will not be carried out and your children may end up in litigation fighting over who is entitled to what. In addition, maybe you might want to discuss other estate documents like your power of attorney and health care proxy to make sure all your wishes are properly expressed. Good luck.

    The above comments are general in nature and not intended to be legal advise nor create an attorney/client... more
  6. Steven M Zelinger

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    Contributor Level 20

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    Answered . Did you set this up in your will with your attorney? I would discuss this with a local attorney to see how such a set up would be handled in your state. Children can always try to litigate an issue when you are gone.

    This is not legal advice nor intended to create an attorney-client relationship. The information provided here is... more
  7. Amy Antonellis

    Contributor Level 2

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    Answered . Granting your one child a life estate would give them the opportunity to remain in the house and the house cannot be sold so long as the child is still living there. You should however consider your child's ability to maintain the property and pay yearly taxes. A discussion with a local estate planning attorney regarding your particular situation is strongly encouraged.

  8. Anastatia Quirk Ellis

    Contributor Level 13

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    Answered . You did not mention why you have chosen that one child should not be made to leave the house. If this child is disabled and unable to provide for their own shelter, then you should contact an attorney about establishing a Special Needs Trust for the benefit of this child.

    Anastatia Quirk Ellis, Esq. is licensed to practice law in Florida, Massachusetts and U.S. Tax Court, This answer... more

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