Question: Can I leave a house that’s in my name to my adult son after I pass instead of my new husband? My father-in-law deeded me the property to get the mortgage in my name because my credit was better. My husband has three children from a previous marriage who have all had issues with addiction and incarceration.
Loraine’s Answer: If you are the sole legal owner of your house and your principal residence is in Georgia, you can generally leave the house to whomever you wish, as long as you don’t have a prenuptial, postnuptial, or other agreement that requires you to ensure it passes to someone specific at your death. You need to do some good estate planning, however, to do so.
That means either:
- You do a Will that leaves your property, including the house, to whomever you’d like to receive it.
- You do a Revocable Trust and a Will. You can have the revocable trust provide for the disposition of the house and your other assets; and, ideally, transfer your house to the Revocable Trust as soon as possible after you have executed the trust.
Ideally, you would also do a Power of Attorney and an Advance Directive for Health Care at the same time you do the other estate planning documents.
If you use a Will as the primary method of controlling the distribution of your property at your death, then your spouse, if he survives you and you are still married to him at your death, could potentially disrupt the plan. He could do so by trying to challenge the Will as one of your heirs, claiming that the Will was invalid for some reason. He could also, as your surviving spouse, make a claim for a “year’s support,” and take the entire estate, or at least some part of it, that way. A Will challenge may not succeed (many fail), but it can still cost significant amounts of time and money. A year’s support claim is somewhat more likely to succeed than a direct Will challenge, because state law in Georgia gives a surviving spouse a right to the year’s support, and it can only be challenged by others on the grounds that the spouse is asking for more than he or she needs to live for a year, taking into account the spouse’s own income and resources. The challengers to a year’s support claim bear the burden of proving that the spouse is asking too much. While not impossible, meeting this burden of proof may be very difficult.
If you’d like to try to reduce the chances of a challenge happening, then you should consider using a revocable trust (also known as a revocable living trust) plus a Will, as part of your estate planning. In this case, the Will would normally say that assets that become part of your probate estate at your death should be poured into the Revocable Trust. The intent is that the Will will serve as a safety net, in case you have any assets that become part of your probate estate at your death. In order to reduce the need for the Will to actually control anything at your death, however, you would also need to transfer the title to the house, along with title to most or all of your other assets, to the Trustee of the Revocable Trust while you are still living. (At our firm, we refer to a Revocable Trust that has had most or all of its creator’s assets transferred to as having been fully funded.)
Normally, you would be the initial Trustee of your Revocable Trust. The Revocable Trust will normally provide for your benefit as long as you are still living, and it should provide for a successor Trustee (or multiple successors) who will take over management of the Revocable Trust if you become incapacitated or die. The Revocable Trust should also spell out where your assets goat your death. At your death, the Revocable Trust will control any assets that it already owns, along with any assets that are paid to the trust under a beneficiary designation at your death, and your Will will not be needed to deal with any of those assets. (Assets owned by the trust or paid directly to it do not become part of your probate estate.) A Will challenge and a year’s support claim both affect your probate estate, not trust assets, so having assets owned by or paid directly to a Revocable Trust at your death makes it more difficult for your spouse to try to get a share of those assets by challenging your Will or making a year’s support claim. It’s also more difficult to directly challenge a trust than it is to challenge a Will. For these reasons, we often recommend to clients who wish to limit what they provide to a spouse that they use a fully funded Revocable Trust as part of their estate planning.
If your spouse is willing, you can also have him sign a postnuptial agreement with you, in which he agrees to waive any heirship and year’s support rights (among other things). But if he’s not willing to sign a postnuptial agreement, you can still do your estate planning.
If you do change the title to your house to a revocable trust, please make sure to reapply for the homestead exemption after you’ve done so, since property tax benefits will generally be affected any time you change the title to your home You should also adjust your homeowner’s insurance to be sure that both the trust and you are listed as insured parties and that any damages will still be covered.
Find an experienced estate planning attorney to help you with your estate planning. It’s not a good do-it-yourself project.
Key Estate Planning Takeaways: To reduce the chances of a spouse or other family member challenging a Will, it’s a good idea to consider using a fully funded Revocable Trust plus a Will.
This “Q&A with Loraine” blog series is inspired by answers from Morgan + DiSalvo Partner Loraine DiSalvo to actual user questions posted by individuals on www.avvo.com. This blog is a more in-depth response than can be given on their site under their character limits for answers. To view the original question and Loraine’s original response, click here.
