An intended funny twist of a well-known adage asserts, “why do today what you can put off until tomorrow”. Unfortunately, when it comes to implementing an estate plan, adhering to the twisted version of this adage may lead to some adverse consequences for our loved ones. An example might illustrate some potential consequences from following an “I’ll get to it someday” approach to estate planning.
A and B get married, and have a child. A was previously married, and also had a child during that prior marriage. A’s child from the prior marriage ultimately predeceased A, but was survived by a child, A’s grandchild. Neither the child nor grandchild from the prior marriage had much communication with A or B, or with their child. For over 30 years, A and B lived in the home A received in the divorce from the prior marriage, and even procured a home equity line of credit secured by a mortgage on the property. Though B urged A to either sign a deed making them both owners of the home, or to make a Will giving the home to B, A never got around to doing either of those actions. A subsequently dies owning the home and being survived by spouse, B, by the adult child born of A and B, and by the adult grandchild born of the deceased child from the prior marriage.
Florida law governs how homestead real property passes at the death of the owner if not properly devised by Will, or if not properly re-titled during life. Without either a Will giving B the homestead real property, or a deed giving B rights of survivorship in the homestead real property, B is now left with having to decide whether to receive a life estate in the homestead real property, with a remainder interest being split equally between the child of A and B and grandchild from A’s prior marriage, or electing to receive a fifty percent (50%) tenant-in-common interest, with the child of A and B and grandchild from A’s prior marriage each owning a twenty-five percent (25%) tenant-in-common interest. Also, without a Will directing otherwise, B could end up owning only one-half of other property in A’s name alone, such as bank accounts, with A and B’s child and the grandchild from A’s deceased child equally splitting the remaining one-half.
It is easy to see the problems which might arise under Florida’s laws when the estate plan adopted by a person is to simply do nothing. With surviving spouse, B, only receiving either a life estate or a fifty percent (50%) tenant-in-common interest in the homestead real property, B is left without the ability to make unilateral decisions concerning the real property, such as whether to sell it or refinance the mortgage, and may face other issues with the existing mortgage or future repairs and improvements, all resulting from a shared ownership structure with others. B is also deprived of the benefit of receiving the full value of the homestead property. If A had signed a deed during life creating a tenancy by the entirety with B, or had made a Will giving the homestead entirely to B, the entire homestead real property would be owned solely by B, and these problems could have been avoided.
If you need advice on homestead real property planning, on drafting a Last Will, or with implementing any other estate planning objectives, at Bob Bible Law, we have the knowledge and over 35 years of experience to guide you through these issues.