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Mom wants her second husband to be able to stay in her house if she passes first but then to go exclusively to her kids not his. How?

14 10 November 16, 2018 at 07:25 PM
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"mom" wants to word will so her kids get the house she owns but shares with second husband - with him being allowed to stay as long as he lives/wants after she's gone. (This is a retirement home in FL she bought - no emotional connection to her or his adult kids.)

I'm thinking a trust of some sort could handle this but complicating factors... Does she need to leave money in the trust to pay mortgage while husband is there? What about utilities and taxes? If she doesn't, are the kids required to pay if husband can't or won't. Can they evict him in that case?

This feels very complicated. I've advised she leave the second husband the house entirely or some money to live on elsewhere. Or just let him know he'll need to find a place if she dies first. Her kids can rent it back to him if everybody wants or he can move on.

As you may have figured out, she's not convinced he has the inclination and/or ability to pay the bills if they fall to him. I pointed out that just saying in the will that he can stay in house and then goes to her kids isn't going to address these concerns.

Hopefully not too garbled - will answer questions.

BTW, she doesn't even have a will at this point - just told everybody what she wants! (I'll get her to do will but getting guiddance here will help.)

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#2
You need to talk to an estate attorney and accountant to make sure it is done right imo. I was under the impression that most if not all states will not let you completely cut out a spouse in a will, so barring a pre-nup the terms would need to be such that they follow state law on such and that the will could not be contested by either party.

That said, I would assume she can stipulate in the will the conditions and the executor of the estate would be bound to follow it. Since there is still a mortgage on the house though, there would need to be enough money in the estate (from other assets or insurance) to set that aside in a trust to pay the mortgage off and the property's expenses for whatever period. If not, then the children could argue that they are being burdened supporting the husband and need to sell the place. Like I said, this is all stuff that should be done with a properly drawn up will and estate planning through an attorney and accountant.
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#3
In my dad's case it was done with a pre-nup and a living trust and when he dies his wife can remain in the house for up to one year. There is no mortgage to worry about but I honestly don't know if anything was spelled out about taxes, insurance, maintenance cost, etc. I've honestly never given it any thought before but definitely worth thinking about.

Having an uncertain length of time makes it much more complicated in the case of the OP and I cant imagine a foolproof way to spell it out unless there is enough money that a trust could be set up to fund the house expenses indefinitely. Definitely a case where all of the details need to be covered or there is far too much potential for problems.
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I like what she said, not what it means.
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#5
Similar to a question answered here [marketwatch.com], one possible solution is giving him tenancy in common, with no survivorship rights [findlaw.com].
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#6
I believe she can leave it to the kids and then give husband a "life lease"
with certain rules , like being a renter without paying rent just upkeep.
and if he doesn't keep the house up can be evicted if he lets the house go in disrepair
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