This column first appeared in the San Antonio Express News and other Hearst Newspapers on December 28, 2018.
Dear Mr. Premack: I received 100 acres of land from my dad 30 years ago. I want this land to stay in my family as long as I can. I want my four grandchildren to inherit the land equally, but I also want my two kids (the grandchildren’s parents) to be able to live on the land while my kids are still alive. My kids have potential issues with their spouses, so that is another reason why I don’t want my kids to own the land. Can my Will give the land to my four grandchildren but still allow my kids (their parents) access through a life estate? – WM
Land ownership can be complex, with issues of maintenance, taxes, sharing the use and enjoyment, and ultimately determining who will receive the land when you die. For some, that is a simple decision. But for those who have heirloom land and a desire to pass it on to more than one future generation, the choices can be more complex.
If you simply devise the land to your two children, then generally you are also giving them the right to sell the land or decide whether the next generation will also inherit the land. Your letter voices an election to exercise as much long-term control over the land as possible. You ask if a life estate would be useful. Granting your children life estate would not accomplish your long-term goals and would not protect the land in the way you desire. To accomplish your goals, the best tool is a Trust.
Consult with a qualified Elder Law / Estate Planning Attorney about structuring a Trust to meet your goals. You will need to select a manager (Trustee) to carry out your instructions. It is possible to have a group of Cotrustees, like both of your adult children, to be succeeded eventually by one or more of your grandchildren. It is also possible for you to name a professional Trustee like a local bank’s trust division so that conflicts inside the family might be avoided.
The terms of the Trust could allow your adult children to use and enjoy the land so long as they are alive. They would not, however, own the land (it would be owned by the Trust). Terms allowing your grandchildren to use the land after they become adults can also be incorporated. Be aware, if hunting will be allowed on the land then the dangers posed by firearms must be considered, and appropriate requirements for liability protection (like establishing a limited liability company [LLC}) and requiring liability waivers should be mandated in the Trust.
Because your adult children do not become owners of the land, their spouses will have no control or input regarding the land. If one of your children should divorce, the Trust keeps the land from becoming an issue and the land could not end up with the former spouse.
Theoretically all of these terms could be contained inside a testamentary Trust contained inside your Will. After you die, the Will would be probated, and the Trust would then be activated. In the alternative, you could set up a separate Trust for the land, deed the land into the Trust now, and avoid having the land go through probate. These are just a few of the issues you should discuss with a qualified Elder Law / Estate Planning attorney to make selections that best suit your needs and goals.
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.