By Quentin Fottrell, MarketWatch
My second husband, previously divorced, is 86 years old and has been putting off setting up a trust for 10 years. We have 12 children between the two of us, and he wants to leave all of his assets to me, and then everything to his seven children after I die.
The problem is, he wants to leave the house to his children, but says if I outlive him I can live in it or rent somewhere if I wish to move. I would have to spend a large amount of money on rent with the way costs keep going up.
Could his seven children force me to move out if I were still able to live in the home?
Under those circumstances, there is also a possibility that I would need to leave this area because I couldn’t maintain the property, or continue to drive long distances for medical appointments and shopping.
Is there some way for a trust to be set up for me to live in the house and, if I choose or to sell the home if I had to, buy another place more convenient to live in, and then leave that place to his children? Also, could his seven children force me to move out if I were still able to live in the home?
All of his children have their own very huge, beautiful homes and plenty of money. I’m not sure they’d appreciate having to sell this home or maintain it, and pay taxes with no one living in it. If I did sell the home, I would be sure to reinvest the sale amount into another place and the children wouldn’t lose any money.
I have put money into this home over the 28 years that I’ve lived here, but that fact seems to escape my husband.
The other issue: I have my own separate retirement; this is money he expects I will leave to him if I pass before him. He probably won’t need any of it to live on, but he intends to leave whatever is left of my investments to my children when he dies.
Currently, some of my accounts are set up with my husband as the main beneficiary and my children secondary. Other accounts name my husband and children as equal beneficiaries. I trust my husband to handle my investments and to help my children if they need it, but if everything goes to him I’m not sure that my children will ever receive any money after his death.
Wife and Mother
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Dear Wife and Mother,
Not making a trust and leaving your savings to your husband means your five children will rely on the kindness of your husband should you predecease him, while you will rely on the kindness of your husband’s children should he predecease you. Whose kindness is your husband relying on? It seems to be that all the trust is going one way in this estate non-plan. Your letter concerns trust and a trust, or lack thereof. You trust your husband, but do you really? And does he trust you?
First off. It’s very difficult to completely disinherit a spouse in most U.S. states. In New York, for instance, you cannot cut off your spouse in your will without his/her permission through, say, a prenuptial or postnuptial agreement. “Even if you make a will and leave $0 to your surviving spouse, your husband or wife could obtain at least $50,000 or a third of your estate,” according to the Law Firm of Mark S. Eghrari & Associates in Smithtown, N.Y.
“This could be a very substantial amount of money, and those who you wished to inherit the money or property would not have recourse to actually claim the inheritance you wished to leave them because of the spousal elective share,” the company adds. Check the laws in your state when making an estate plan with your husband, and the myriad of other tax laws that may impact you and your husband’s estate plans, including those that pertain to separate vs. community property.
‘This seems like a card game where you are peering over your respective hands, with neither of you calling the other’s bluff.’
Your husband could give you a life estate in the home, but moving would present complications. Living in the house for the remainder of your life, assuming the mortgage is fully paid off, would be a good outcome, and it’s not always possible to have every option at your disposal. If your husband purchased this home prior to your marriage, and you have contributed in some way to the improvements of the home, it may have transferred from separate to community property.
Trusts can dictate the timing of asset distribution, as well as provide heirs with an income in a wide range of eventualities. “Trusts can include custom tailored provisions that will ensure an individual’s dispositive intentions are clearly articulated and enforced, including instructions given to a trustee, or discretion given to a trustee if desired,” says Eva Victor, senior vice president and director of wealth planning at Girard in King of Prussia, Pa. “Trusts are also inherently flexible tools.”
Your husband is saying, “Put your trust in me instead of in a trust.” Likewise, your proposal to sell his home, assuming it is a separate property owned by your husband, asks your husband’s kids to trust you. This seems like a card game where you are peering over your respective hands, with neither of you calling the other’s bluff. Whatever it is, it is not estate planning. You trust your husband to handle your investments, you write, yet you don’t believe he will do right by your kids.
Hire a mediator — an estate lawyer and/or financial planner — to sort through your retirement accounts and assets. The final sentence in your letter tells you exactly what you need to do.
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