Portland, OR asked in Estate Planning for Oregon

Q: Can I stipulate in my will that the house, which is in my name, cannot be sold, but husband can continue to live there?

There is no mortgage. I want the monies from the sale of the house to go to our children, not husband.

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2 Lawyer Answers
Nina Whitehurst
Nina Whitehurst
PREMIUM
Answered
  • Estate Planning Lawyer
  • Crossville, TN
  • Licensed in Oregon

A: There is a way to accomplish this but I would not recommend a will. A revocable living trust would be better. You can then reserve a lifetime right of occupancy for your husband with the remainder to your children. This is an oversimplification, however, as there are many issues to consider. An experienced estate planning attorney can help you with this. I have done these many times.

Joanne Reisman
Joanne Reisman
Answered
  • Estate Planning Lawyer
  • Portland, OR
  • Licensed in Oregon

A: What you want to do is create a life estate for your husband and have your children be the remaindermen who get the house. It sounds like a good idea but it can create problems. For example if your husband has to go into skilled nursing care someone will have to rent the house and use the rental money to pay for his nursing home care as his life estate has value that medicaid will count as a resource. Another problem is that he needs to be able to pay the property taxes, the insurance, and do the repair and general up keep on the house. If he fails to do any of these thigs they value of the house is diminished or possible destroyed. Other issues you might be facing is that Oregon gives a spouse a right to an elective share in their spouse's estate. So if you don't leave him other property sufficient to equal his elective share, he might be able to defeat your bequest in a Will. Often it isn't realistic to expect to have property left over for your children as your spouse may need what you leave to him just to survive. If you are fortunate enough to have sufficient wealth both take care of your spouse and leave something to your children, you might consider setting up an estate plan that does exactly that at your death. You are going to need to talk to an Attorney to sort this out.

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