Question: Can I leave my mortgaged house to my grandson in my Will even though I have two children? My children do not want him to have the house. Can they contest the Will after I’m gone?
Loraine’s Answer: A properly executed Will allows you to leave your property and assets to anyone you wish. Assuming you are the sole owner of the home, you can leave it to your grandson if you wish.
When you use a Will to pass assets at your death, the persons who are your heirs (or the people who will receive your remaining probate estate property if you have no Will at your death) can try to challenge your Will if they are unhappy with it. If your children both survive you, they will be your heirs (along with your surviving spouse, if you have a spouse at your death), and your grandson will not be an heir. However, successfully challenging a Will requires that the challengers make a convincing case that the Will is invalid for some reason.
For example, an unhappy heir could try to prove that the Will was not executed correctly, or that your grandson exercised undue influence over you and effectively coerced you into leaving the house to him, so that the Will does not actually reflect your wishes. However, if you are of sound mind and not being unduly influenced, and if your Will is correctly prepared and executed, then it will likely withstand a challenge.
Your best course of action is to have a qualified estate planning attorney help you create an estate plan that will carry out your wishes, including a Will among other important documents. The attorney should be able to help you put together a plan that will minimize the risk of a successful challenge to your Will. Please also note: If your grandson is a minor, you should strongly consider having the house pass to a trust for his benefit, since you normally should not leave significant assets to a minor child outright. If the property is still subject to a mortgage when you pass on, the house may have to be sold in order to pay off the mortgage, unless your grandson is able to refinance or assume any remaining balance due.
You may have your estate planning documents specifically provide that your other assets are made available to pay the mortgage. Your estate planning attorney should help you consider these kinds of factors when they discuss your wishes with you.
Key Estate Planning Takeaway: A properly written and executed Will allows a person to leave the person’s assets to anyone they choose, and a well-considered and implemented estate plan can significantly reduce the risk of a successful post-death challenge.
This “Q&A with Loraine” blog series features answers based on responses from Morgan + DiSalvo Partner Loraine DiSalvo to questions posted on www.avvo.com. A key takeaway from each exchange highlights an important facet of estate planning.
