The good news is, yes, it is possible to achieve both of these estate planning goals. The bad news is that the situation can lead to friction among the parties involved.
In a Will, you can grant an individual (or more than one) a ‘life interest’ in a real property. This may be a specific property or may be drafted more generally to include any property that is being used as a principal residence at the date of your death. A life interest gives the individual (or ‘life tenant’) the right to use and occupy the property for the duration of their lifetime. The Will will go on to specify how the property shall be dealt with upon the death of the life tenant.
We often encounter this type of estate planning in second marriages. In such cases, a spouse will provide in their Will that their surviving spouse may continue living in the family home for their lifetime. Upon the death of the second spouse, the Will will stipulate that the home is to be sold and the proceeds divided among the children of a first marriage.
When instructing the drafting lawyer, it is important for you to carefully consider a few key points:
- Who will pay for capital repairs? Ongoing expenses? Since any capital improvements will likely increase the value of the home and ultimately benefit the children, you may wish to specify that at a sum of money be set aside from your estate to pay for such items. But what about ongoing expenses such as internet and water and sewage? Should these be paid by the surviving spouse or your estate?
- Who to appoint as executor? Your executor will remain the person with legal authority over the property and will be responsible for decisions concerning the home. Should the executor be one or more of the children? Is this a conflict of interest? Will they get along with your surviving spouse? You should bear in mind that although the relationship between your second spouse and your children may seem fine, this relationship may become strained following your death especially in the face of competing interests.
- How to deal with unforeseen circumstances? The clause in the Will granting the life interest should be carefully drafted to account for any unforeseen circumstances. For example, what if the surviving spouse becomes ill and moves into long-term care. Should the life interest end at that time? Who should have the authority to determine when the life interest is at an end?
These types of clauses can provide peace of mind to you in knowing that you are providing for both your surviving spouse and children of a prior marriage. However, when preparing such an estate plan, you must carefully consider the possible ramifications on all the parties involved and plan accordingly to minimize any friction that could arise.