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Real estate Q&A: What’s the best way to leave my house to my sons from first marriage?

By Gary M. Singer

Q: I am a remarried widow and live with my husband. I bought our home before our marriage, and only my name is on the deed and mortgage. We agreed to leave the property to my three sons from my first marriage, who would sell the property and divide the proceeds. Should all three sons be added to the deed, or just one son responsible for following my wishes? Or is it better to spell out the plan in my will? — Cheryl

A: I see this situation regularly in my practice, and it is more complicated than it appears.

Depending on where you live, even if one spouse is the only person who owns the marital residence, the surviving spouse still has certain rights to the property. Usually, this includes the right to live in the home for the rest of their life or retain part of the proceeds if they agree to its sale.

Your will cannot avoid these homestead rights, as they were enacted to prevent a surviving spouse from becoming suddenly homeless.

Even if you added one or more of your sons to the deed, your husband could still have an interest in the home after your demise.

Proper estate planning can provide a way to accomplish what you are trying to do. Your husband may be able to sign some paperwork disclaiming his interest in the home. Or you both could deed the property to a trust that is drafted to carry out your plan.

There can be other reasons not to add your sons to your deed. For example, if one of them is in debt, their creditor could look to his interest in the property.

A local, experienced estate planning attorney could walk your family through setting up a plan to carry out your goals.

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