What steps can he take to make sure the property and land goes to his spouse before his children?

Question

My spouse has property that he acquired before our marriage which is his separate property and land. If he dies before I do, this property goes to his 2 biological children before myself. Does he need a will to state this or can he make his property in his spouses name also? This land and property was given to him through inheritance from his parents before our marriage. So in other words he wants me to be able to live on the land and property and then goes to his 2 children when I pass on. He does not want me to have to buy them out.

Erin Light · Answer

First, if your husband doesn't have a Will or Trust when he dies, his Estate would be distributed under Nevada's intestate succession laws, provided the real property is in Nevada. Under intestate succession,  you being his spouse,  would receive 1/3 of his Estate and his children would receive the remaining 2/3. If your husband wants you to live on the property after his death and then have his children receive the property upon your death,  he definitely needs at least a Will if not a Will and Trust.  In either a Will or a Trust he could grant you a Life Estate,  meaning you could live on the property until your death and then, if he chooses,  his children would inherit the property.  If he were to put your name on the title of the property as a joint tenant with right of survivorship, upon his death the property would become your's and he runs the risk that you would have an Estate plan drafted leaving the property to whom ever you wish.  If his wish is truly for the property to go to his children upon your death,  he would probably be better having an estate plan drafted giving you a Life Estate.

Edwin K. Niles · Answer

Yes, he can add your name as a joint tenant, and/or he can sign a will.

James Oberholtzer · Answer

He should put the property into a trust.  It is the most reliable and the most capable of being customized to his situation.

Norman Green · Answer

He can easily accomplish this through a trust (probably best) or through a will.  What makes you think that if he simply dies, it will all go to them?  If it is his, and he dies without a will (or with a will that does not mention you), then you will get one third.

Ronald Nims · Answer

The easiest and most certain way to allow you to live on the property then transfer it to his children upon your passing is to make a deed that grants both of you a life estate with the remainder going to his children.

Dara J. Goldsmith · Answer

You need an attorney to review the title to see if he has the ability to make that happen.    This information is only intended to give general information in response to an inquiry.  It does not establish an attorney client relationship.  This response is only based upon the limited facts presented and is merely intended to assist you in determining if you should contact an attorney to provide you with legal advice.

C. Hamrick · Answer

FOR WEST VIRGINIA ONLY: On way to accomplish this is for you husband to execute a deed to the property for a life interest to you with remainder to his children. He needs to see an attorney to have this prepared.

James Maguire · Answer

What he can do is grant you a usufruct over the property, which would   terminate at your death.   This would protect you while you are living (you would have the right to   live in the house), and then the property would pass to his children.   This would have to be done in a will.

Christine James · Answer

HE will need to go see an estate planning attorney to make sure the appropriate documents are put in place, be it a will or trust.  Be very careful here.  If you are too involved in this, the kids may be able to come back on you and undo anything that was not properly and independently done.  Have your husband meet with an estate planning attorney alone.

Victor Waid · Answer

Strongly suggested you obtain the services f an estate planning attorney to create an estate plan for disposition of the property, create a durable power  of attorney, advance healthcare directive, among several supporting documents such as a pour over will to back up the trust. Don't be cheap about this, as mistakes in the implementation of the plan can have long term consequences rightly or wrongly; meaning use an attorney specialist who know what they are doing, and not a TV salesperson, etc.

Randall Romei · Answer

If your husband does not have a Will or Trust then the assets owned by him at his death would be distributed in accord with the statute on descent and distribution.  This means that his estate would be divided, to his surviving spouse and divided equally among his children, born to or adopted by him.  It makes no difference if the property is inherited unless the ownership interest he received is limited in some way.   Your husband can provide for your use of the property after his death and for the remainder of your life by means of a Will with a testamentary trust or a Living Trust.  Your husband can direct that in the event he predeceases you, certain of his assets be used for your benefit while you are alive and that they would then pass to his children after your death.  To do this he must create a trust, either pursuant to terms in a Will or currently by creating a Living Trust, and include in the terms of the trust how the assets are to be used.  He would have a great deal of flexibility in fashioning the terms of the trust and the duties and responsibilities of the trustee.  He can retain complete control while he is alive and set the terms of usage, who benefits and when after his death. Your husband should discuss his preferences with an attorney.

Brian Haggerty · Answer

Yes, your spouse needs a properly drafted will. The will could create a trust to hold the land for your benefit while you're alive, and then distribute to his kids. Or, he could deed you an interest in the property as tenants by the entirety, and you would then leave a will leaving the property to his kids  but of course, that's less certain for him, because you could change your will after he passes away. The land is probably worth six figures, yes? It is worth it for your husband to spend some on a good estate planning lawyer to get this done right.

Jayne Sebby · Answer

In the past, a person would bequeath real property to his/her surviving spouse for life with the property to go to the children after the surviving spouse's death.  However, numerous legal and ethical problems (and sometimes additional taxes) arise with that kind of arrangement.  Many families spend a lot of money as well as years tied up in court battles trying to undo the problems.  Talk to a good estate attorney.  A trust may be the best way to handle this situation.

David Leon · Answer

He should write a will and specify his exact wishes. If not, you'll have a life estate in 1/3 of the property, along with a bunch of problems.

Patrick Currin · Answer

The best way to do this is a trust. Moving the properties into a joint tenancy with you would give you the properties after his death, but does not provide for the children.

Ronald Stutes · Answer

A will is needed if he wishes to have the property pass in a manner different than that specified in the state laws of intestacy. In Louisiana, he could grant you a usufruct to occupy the property after his death. In other states, a life estate could be used.

Thomas Edward Gates · Answer

He will need a will to state that you have a life estate on the property and, when you are deceased, the property goes to the children in equal shares.

James E. Reed · Answer

He could convey a joint life estate to the 2 of you, with the remainder to his children.  The draw back of doing this, unless some special wording is placed in the Deed, is that he won't be able to do anything to the property (such as sell or refinance) without his children's consent.  This is a complicated issue and transaction for which you really need to consult with an attorney personally to discuss and explore all of the possibilities and drawbacks.

John Brennan · Answer

You need to see an attorney and to have some estate planning. This intention and desire is certainly possible and relatively easy if you do it right.  It will not happen if you do not act.

Mark T. Peters · Answer

I would amend his will to provide that he is giving you a life estate in the land with the remainder to go to the children.

Jeffrey Gottlieb · Answer

He should talk to an estate planning attorney.? A trust will probably be the ideal vehicle to accomplish the goals you articulated.

Find a Lawyer

Ask a Lawyer

Read Legal Articles

Ask a Lawyer

Read Legal Articles

What steps can he take to make sure the property and land goes to his spouse before his children?

21 ANSWERS

Find Local Estate Planning Lawyers

Helpful Resources

Ask a Lawyer