Can a house life right be written into our wills for 1 of our children?

If my wife and I both die at the same time or once we are both gone, I would like to leave all we have to be split between our 2 adult children 50-50. That’s easy. But, our daughter is married and lives away from home and our son still lives here. We’d like to leave everything to be split evenly between them but would like our son to have the right to stay in our home. Is there a way to write a life right for the house for him into our wills?

Asked on June 10, 2009 under Estate Planning, Pennsylvania

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Yes, you can give your son a "life estate," in the home, which is the right to live there, but not to dispose of the home. Any good trusts and estate attorney could help you write a clause into your wills that will protect your son's right to live in the home while also protecting your daughter's right to receive 50% of the value of the home if and when it is sold. All you need do is figure out *exactly* what you want and take it to an attorney to write it up. I recommend you think about all the different possible permuations:

Could you son sell the home, as long as the proceeds are split 50-50? (And if so, does your daughter have a right to challenge the sale price if she thinks it too low?) Or can it only be sold if both your son and daughter agree?

If you son should pass away before your daughter, does half the home's value go to his heirs and half to your daughter, or does it all go to her?

What if your daughter predeceases--do her heirs still get half, or does it all go to your son?

Who pays for maintenance, upkeep, and taxes on the home? Who gets to make those decisions? If your son is living there, should he pay rent either to your daughter or to a pool of money which would be used for home mainteance, etc., with the remainder one day being split?

Can you son make changes to the home, like knocking out a wall to combine two rooms? If you son puts his own money in to improve the home, is the increase in value split evenly, or does he get some % of his money back off the top when the home is sold, then the rest is split?

If the home has any guest room or cottage, does your daughter have any right to use it, or could you son keep her out?

You can set up your will to do just about anything that is not illegal, including by (if appropriate) settting up a trust which would own and maintain the home while letting your son live there. A good T&E attorney will help you do this, but the more you think about exactly what you want in advance, rather than while on the attorney's clock, the more money you'll save and the more likely you are to get the outcome you desire.


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