This column first appeared in the San Antonio Express News and other Hearst Newspapers on November 19, 2018.
Dear Mr. Premack: I was interested in your earlier article about children inheriting property. In my Will I have stated that my house be sold only and that my children equally divide their share of proceeds. I have since thought about changing the Will to let my daughter (who lives with me) stay in my home. She could obtain a mortgage and pay the other children their share. If I can do this, do I specify that my daughter be given a certain amount of time to obtain financing in order to pay the other children? – LH
Making a Will allows you, as owner of the home, to dictate various terms that apply to any inheritance. Your current plan to have the house sold by your Executor has the dual advantages of simplicity and equality. When the house is sold, everyone is treated the same.
Your concern, however, is that your daughter isn’t really being treated the same. None of the other children have to give up the place where they reside, but if the house is sold then she has to find a new residence and has to move. Consequently, you want to modify your Will to give the house to her, but to require that she take a loan to pay the other children their fair shares.
In a way, making her take a loan is also putting her at a disadvantage. She will get her share of the house, but she’ll also have a mortgage payment to finance the buy-out. That means that she’ll be paying interest on the loan, while your other children can invest their shares and receive interest. So, there is no perfect solution that treats everyone exactly the same.
Here is one option: in your Will, retain the requirement that the house be sold. However, add a provision that gives your daughter the right of first refusal to purchase the house from your estate. Set a time limit, like three to six months after your Will is admitted to probate. That gives her the opportunity to ponder her decision. If she wants the house, she can find financing and pay the estate. The Will could set the sales price at the Bexar Appraisal District valuation and could give her credit for her share (so when she gets the loan, she doesn’t need to borrow money to buy her share as well).
Another option – if your estate has adequate other funds – is to state that each of your children gets an equal share of your overall estate, but that your daughter’s share should include the house. For instance, if the house is worth $400,000, you have investments worth $800,000, and you have three children, then the Will can specify that daughter gets the house ($400,000), child 2 gets half the money ($400,000) and child 3 gets half the money ($400,000). That way, they are all treated equally, and your daughter does not have to take on any debt.
You should sit down with an experienced Estate Planning / Elder Law Attorney to discuss these options and other possible scenarios. Everyone is different, and a personal discussion about the situation may pinpoint other solutions. Do not try this as a do-it-yourself project and avoid online forms. You need advice which can only come from a licensed, experienced, and qualified attorney.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.