One of the most overlooked areas of estate planning occurs when a person owns a house and has children who live with them at the time of their death. If you have a child (or children) who live in your home with you, then you should carefully draft your will to determine what will happen to the home when you pass away and clearly state the rights of your children with regard to the home. In many cases, people want their estate to be divided “equally” among their children when they pass away. However, “equally” can mean something different to a child who lives in the house as opposed to a child who does not live with you. The child who lives with their parents often want to remain in the home and they may not want the home sold. The children who do not live with their parents often want the home sold or want to be bought out. This can lead to conflicts between the child (children) who lives with you and the child (children) who do not live with you. Therefore, it is important to consider what should happen to the home once you pass away to minimize conflicts with loved ones once parents pass away.
Some of the items to consider include: -Does the Home get sold, and if so, when should it be sold? -Does the child who lives with you retain a right to reside in the home after you pass away, and, if so, for how long? -How are bills and expenses of maintaining the home to be paid if the house is not sold? -If there is rental income, who collects the rent, how is the rental income applied, and who gets the profits? -If the home is to be sold, do any of your children get a preference or first option to purchase the home? All of these questions should be answered in your Will, so that your loved ones are not left to guess. In New York, any co-owner of a home can force the other owners to sell the property through a Court Proceeding known as a Partition Action. Therefore, if you leave your home to your children, then the children who do not live with you can force their sibling out of the house unless your Will states otherwise. If you do not want the home sold and want to extend a right to reside to your children, then their needs to be specific language in your Will. If you wish that the property be sold upon your death, then it is still important to state your wishes in your Will so that there is no confusion once you pass away. Whatever your wishes are, it is important to specify those wishes in writing in your Will. You should speak to an experienced attorney to get more information on preparing your Will.
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