Q: My brother in law and husband inherited their mothers home.
They are not selling it at present. They both own it as joint tenancy. So basically if one dies the other automatically owns it. But my husband wants his half to go to our kids. Would a living trust simply stating his wants be enough to over ride the joint tenancy? And would he need to make the trust/put the house in it with his brother, since they both are the owners or can he do this on his own?
A: As a first step, I recommend severing the joint tenancy by filing a tenancy in common (TIC) deed. The next step is to create a living trust and then fund the trust with the property by way of a trust transfer deed. This will insure a smooth transfer of the property without probate to your kids upon your husband's passing.
Yes, your husband can use a living trust to override the joint tenancy and ensure that his share of the property passes to your children upon his death. However, he would need to create a separate trust, and he cannot create a trust over the entire property unless his brother agrees to do so.
Assuming your husband's brother is not willing to create a trust over the entire property, your husband could create a trust that holds his share of the property. This means that upon his death, his share of the property would transfer to the trust, and the trust's beneficiaries (in this case, your children) would inherit the property.
It's essential to note that to create a trust, your husband would need to transfer his share of the property into the trust. This means that both your husband and his brother would need to agree to transfer the property, and the trust would need to be properly funded with the property's title transferred to the trust.
It's recommended that your husband consult with an experienced estate planning attorney to create the trust and ensure that all legal requirements are met. The attorney can help your husband create a trust that meets his goals and protect his share of the property for the benefit of your children.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.