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Is It in the Will?

QUESTION: Dan in Tampa says his father is terminally ill. Dan and his two brothers had a sit-down with their dad about estate planning. Everything will be left to the three kids, but he wants the $80,000 home left to his longtime girlfriend. It’s not in the will that way, though. Should they change the will to reflect this desire?

ANSWER: Change the will to reflect what you want to happen. If he is still of sound mind and able to do that, then the will should state what he wants to happen.

There is another thing that you could do. I’m fine if he wants to just give her the house, but he could leave her a life estate that says she gets the use of the home as long as she’s alive. Then upon her death, it becomes yours. It’s left to you, but she has use of it during her life. That is a more normal thing, but I’m fine if he doesn’t want it to be normal. If he wants to just leave it to her, that’s fine.

But if he is concerned about her just having a place to live, I see people use a life estate more often for that. You might ask the estate attorney about that if you are using one.

The will needs to say what is happening. It doesn’t need to say one thing and you have a side deal going on where you know what dad wants—wink wink, nod nod. No! The will needs to say what is happening. If he deeds the house to you and then you give it to her, you’ll have gift tax. You don’t want to get into that. It’s not the proper way to do it.

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