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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.

Medford, MA |

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

Attorney Answers 8

Posted

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 answer does not create an attorney-client relationship. If you wish to obtain legal advice specific to your case, please consult with a local attorney

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Estela Matta

Estela Matta

Posted

Thank you for your vote of "best answer". Feel free to contact my office in Boston for a consultation. Estela Matta, Esq.

Posted

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]

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Posted

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 informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website: http://www.stevenzelinger.com/

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Posted

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.

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Posted

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 Reading. My practice is focused in the areas of elder law, estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.

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Posted

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 relationship. You should seek the advise of attorney working for you about all the facts of your case before taking an action.

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Posted

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 is provided as general information and does not initiate an attorney-client relationship. You can reach The Law Offices of Anastatia Quirk Ellis, P.A. at 813-625-0222.

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Posted

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.

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