Selling realty in an estate is not uncommon, but it is fraught with issues that do not arise when all parties are alive and ready to deal. People avoid planning for their demise like the plague. It is easier to talk to your spouse or your parents about sexual preferences than it is to raise the issue of what happens to their estate after they die. Often the largest single asset that most people own is their home, and real estate can be one of the trickier assets to dispose of after death, contrary to popular belief.
Who hasn’t thought, oh the house is in joint names so I don’t have to think about it. For younger couples with children still at home, that well may be the correct choice: the house passes to the surviving spouse under law. A simple will leaving all other property to the spouse might then be all that is needed to deal with the other assets. But beyond that, the opportunity for complication expands exponentially. Death doesn’t have the greatest timing, so a family may be in any of variety of circumstances when the end comes.
The couple could be recent empty nesters who still have the big rambling house. With the house in joint names, the survivor now has to cope with keeping the old ark heated, insured, and repaired at a time when just making it through the day is a challenge.
The property could be the beloved ancestral home, where all the far-flung kids return to celebrate holidays. But once the matriarch or patriarch dies, they are suddenly faced with owning property in a location where none of them live. Even if there is one member of the family who was living in the house and who would want to continue to do so, could that one sibling buy out the others? And for how much?
In many cases, joint ownership of property by siblings is a recipe for disaster. The Sisyphean task of getting brothers and sisters to agree on where to go for a dinner pales into insignificance when the question is how to pay for a new septic system for the old manse. If the property is a vacation spot the logistics become even more horrifying. Who uses it when and who is responsible for repairing the hole in the wall that appeared after nephew Eugene had his bachelor party there? And what if one sibling wants out or, alternatively, doesn’t want to sell because he uses the old cabin all the time and loves it there.
Real estate can indeed be an albatross after your demise, but there are a variety of planning tools that can make its disposal easier. Joint ownership with right of survivorship is, as mentioned, a simple solution for the young family where the surviving spouse and kids would want to remain in the family home, and there are assets or cash flow sufficient to maintain the property. Life insurance is the most logical means to provide funds for such things as the mortgage. The transfer of the property to the surviving spouse is not complex, and the proceeds of the insurance acan be available fairly quickly.
For both the simple and the less straightforward situations, careful planning with your attorney is vital. As an example, for tax planning purposes, it might be advisable to have the house in only one spouse’s name. If that is the case, then that person’s will should contain specific instructions as to its disposal. One possibility is to have a provision in the will that a trust be funded with the property, along with other assets to allow for its maintenance. The surviving spouse could have the use of the property for life and then the real estate sold after the second death. Alternatively, if the couple agree that the survivor would not want to remain there, no trust is needed and the property can be sold in the estate.
Placing a house and land into a trust prior to death is also a common solution for many couples. The trust technically is the owner but while the couple is alive they can be trustees with full use of the property. Using a trust is of greater value if the couple is elderly. They can choose to turn the burden of managing the property to a successor trustee, who is usually a trusted professional advisor or a corporate trustee such as a bank. That successor trustee then takes care of maintaining the property and paying the associated bills. A bank or trust company insures the property under their master policy that they use to cover all real estate holdings and the cost of the insurance might even be reduced. Taxes are paid regularly; repairs are contracted for by the trustee; and the family is protected from unscrupulous vendors who prey on elderly homeowners.
Disposal of real estate through a trust is not the only way to transfer title. An individual may direct in his or her will exactly who is to get the property and how. If the person writing the will, the testator, wants to give the property to someone specific — the legal term is “to devise” — then it is spelled out in the will. Among the many options to consider is the question of the mortgage. The property can be given free of any mortgage or subject to it. Careful thought must go into that decision because no one can know the financial state of the person getting the real estate at the time of death. Can that person afford to assume a mortgage? Can they afford the upkeep on the house? Would the testator want some additional money to be given to the person getting the property to help maintain it?
If an estate holds title to property that is not specifically devised, it must dispose of it in an arm’s-length transaction. The time for discussions about who would want the house is essentially over after the death of the owner. If an heir decides that he or she would indeed like to own the property after all, he or she will have to purchase it from the estate at fair market value.
Great care has to be taken if one sibling or family member has personally put money and effort into keeping the house up for elderly parents on the vague promise that he or she “will get the house when we die.” Did that child keep records of expenditures and is there documented evidence that the sibling was counting on this promise? There is no requirement that anything will be forthcoming.
One additional consideration in deciding whether to dispose of property under a will or to place it in trust before death is the time that probating an estate can take. In the case of Woodacres, the estate has been open for six years. This is not an abnormally long time when the steps to probate an estate are taken into consideration.
All debts must be discovered and paid; all assets must be found. This latter task is not as easy as it sounds. Spouses don’t necessarily know what each other owns and children are often reluctant to talk about death. Almost more difficult than saying you want to talk to your parents about their demise is the bold question: “So what do you own, Mom and Dad?” Try asking that without sounding like a grasping, greedy child, especially if your family is not given to discussing money matters.
This general discussion touches on only a few of the variables that go into handling real estate. Careful consultation with your attorney to assess all the tax, legal, and personal implications is imperative. Everyone’s situation is unique. Leave this to the professionals, do not try this at home.
Whiting is a trust and estates attorney who lives in Princeton. She no longer practices law and is a frequent contributor to U.S. 1.