Inheriting a house occupied by slobs

Dear Len & Rosie,

The property that my mother is leaving to me upon her death is currently inhabited by other family members. They have chosen to live in filthy conditions and have never cleaned their home in any way and have basically trashed the residence. However, my mother has told me that in her will it is written that it is necessary to give them three months to leave the residence and that they are not responsible for leaving the property in a clean condition. The residence is extremely dirty, especially since they shared their home with four cats that soiled the carpets and flooring. I do not feel that this is fair and I have always been under the impression that each landlord expects their tenants to leave their residence in a clean state and that it is not up to the landlord to incur the costs associated with cleaning out the residence.

Olga

Dear Olga,

You are undoubtedly eating your liver over this. You’re going to inherit a house occupied by slobs who don’t pay fair market value rent, and you’ll have to tear up the carpet and maybe even replace the floorboards on your own dime. You aren’t inheriting a home, you’re inheriting a fixer-upper.

This isn’t a typical landlord-tenant relationship. We’re sure that if the family members living in your mother’s rental property weren’t family, she would have gotten rid of them by now. But it’s your mother’s property. She has the right to distribute her property any way she wants to upon her death, and if she wants to give a break to the people you’re going to toss out onto the streets, she can do it.

Keep in mind that you couldn’t get them out of the property within 90 days of your mother’s death, anyway. They are tenants, and if they have lived there for more than a year you have to give them sixty days notice to terminate their tenancy. And you can’t do that until your mother’s will is admitted to probate and you are appointed by the judge as executor, and that shall take at least a month after your mother’s death.

If your mother creates a trust and transfers the property into it, not only will her assets avoid probate, you, or whoever the successor trustee is, can legally send notice terminating the tenancy of your less than neat and clean relatives. But be very careful while talking to your mother. She could react poorly to your request and give them the home instead of you.

Len & Rosie

Step-mother wishes to leave her estate 50/50 to her husband and her children

Dear Len & Rosie,

My 74-year-old stepmother has been diagnosed with terminal kidney cancer and is expected to die within two years. Her will provides that their home and other assets be sold and distributed 50-50, half to her kids and half to my father. Is this legal and enforceable? I'm afraid that my father will be displaced and lose his home and his independence when she dies.

Maria

Dear Maria,

Your step-mother has the right to leave her assets to anyone she wants upon her death. She is under no legal obligation to leave anything to your father at all. Many people in second marriages want to make sure that their children from prior marriages do not lose their inheritance. Over the years, we’ve heard many widows say that their late husband’s children never respected them, or the step-children were being greedy, or a step-child was asking too many questions about the will or trust. If your step-mother dies first and your father inherits everything, then he could very well disinherit her children. This is probably what she was thinking when she made her will.

But it may not work out the way she wants. When your step-mother dies, her will shall apply only to her probate estate, which consists of assets titled in her name alone, in tenancy in common with others, or in community property (but not community property with right of survivorship) with your father. If the home is titled in joint tenancy with your father, he’ll own it and any other joint tenancy assets outright upon his wife’s death, no matter what her will says. He’ll also inherit everything left to him by beneficiary designation.

But that’s leaving it all to chance. A joint tenancy can be severed (converted into a tenancy in common) anytime before the death of either joint tenant. Your step-mother can do this by herself without the consent of your father, as long as the deed is recorded before her death. Or, if she signs the deed severing the joint tenancy within xx days before her death, her children can record it within xx days after her death.

The best way of dealing with this problem is for your father and his wife to communicate with one another about what each of them want. They should also meet with an estate planning attorney to review their existing estate plans. There are many possible solutions that will allow the surviving spouse to stay in the family home and receive the benefit of both spouses’ assets while protecting the inheritance rights of the deceased spouse’s children.

For example, your step-mother can give your father a life estate in her half of the home and pass the remainder interest on to her children. Or she could have her half of the home held in a trust for your father’s benefit. The two of them together could even enter into a written contract promising to leave everything to one another on the first death, and then to both families equally on the second death.

Don’t forget that your step-mother is ultimately in control of her own assets. She does not have to create a trust with your father, and may still want to leave everything to her children upon her death. Brush up on your sales skills and try to persuade her that allowing your father to live in the home until his death is a good thing for her to do, and that she can do this while still protecting her own children’s inheritance.

Len & Rosie