What legal issues or problems are there when adding stipulationsto a Will?

My mother is in the process of making a Will. She is using Will maker software and understands for the Will to be valid that it must have the required number of witness signatures and she is getting it notarized. She is a widow and has 7 children all over the age of 18. Her wish is to leave her home to her oldest son with a stipulation that if he ever decides to sell the house or when he passes away that the house be sold and the money divided evenly between her remaining children. Would there be any legal or court issues in transferring the deed to her son or any other issues that may occur because of the stipulation that she is requesting?

Asked on November 29, 2011 under Estate Planning, Tennessee


FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

First, although I appreciate a person's effort to safe money during these economic times, but there is no alternative to having an experience Wills and trust attorney prepare one's Will. I suggest that your mother consult with one about her desires.

As to answering your question, it sounds that she wishes to leave her home to her oldest son as a life estate for him where upon his passing the home is sold and assets divided amongst any remaining children or possibly their issue (grandchildren of your mother).

The other stipulation is that if the eldest child wishes to sell the home, the home gest sold and divided amongst the designated children can be done, but from a practical point, the oldest son can rent out it out during his lifetime and keep the rents for himself.

I would hold off transferring the title to the property to the oldest child while she is alive because it could create gift tax issues and eliminate the stepped up basis upon death.

The desires seem somewhat simple but if not properly drafted in a document, there could be some problems later on as stated. I suggest that she consult with a Wills and trust attorney.

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