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.
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A:
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.
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