How to Set Up Your Will to Avoid Disputes

An estate plan can help to peacefully pass down your homestead to heirs

Each client who walks through the office door is different, says Katie White, an attorney with McDonald Fleming Moorhead in Pensacola. And it’s not just the people who are different, but their wants, needs and circumstances, as well. That’s why a one-size-fits-all approach doesn’t really work in writing a will. “But there are options,” she says.

“I have clients who come in and say, ‘I know this one child is going to be difficult. They’re going to be kicking and screaming, but I want their older brother to be the executor.’ That’s when we try to set things up in a way that the child can’t be disruptive, because that just costs everyone more money.”

White handles estate planning for parents, as well as probate for beneficiaries, so she knows the various options to explore depending on her clients’ needs. “I talk to clients about what their goals are, the family dynamics, and overcoming their preconceived notions of what their will actually controls,” she says. “A lot of people don’t understand that your will only concerns the assets that are just in their name when they pass away, which a lot of times is just their home. … We do a lot of shorter, summary probates for homesteads, because often people name beneficiaries on their various accounts, but not on their homes, so the title ends up in their children’s names.

“Sometimes we get problems on the back end when you have three people owning it. Even families that get along the best can run into the inherent challenges of joint ownership. What a person can do on the estate planning side is anticipate those challenges and discuss them with the attorney. Some folks say, ‘You know, I’m not going to be here and they’re adults; they can work it out.’”

Sometimes they do; and sometimes they don’t.

“The primary way people can avoid joint ownership is leaving the home to a trust, or do a living trust in your lifetime. Every case has pros and cons, and most of my clients don’t like to do that because of tax consequences and creditor issues,” White says. “To me, trusts are oversold these days. The more basic thing that can be done is putting one person in charge. Then you don’t have multiple people to make a decision.”

That child may come under fire from the others, White notes, but it’s up to that named child to be the decisionmaker and, hopefully, divide things fairly. The homestead passes to the heirs immediately after the decedent’s passing, and they are responsible with what to do with it.

If you suspect that the sale of a homestead is going to be a sticking point, as can sometimes be the case, White cautions not to leave sale directions in your will as it may take creditor protections away from the beneficiaries. That can also happen if you leave a home to people who aren’t heirs—like a friend or charity. A better solution, White notes, would be to develop a plan early, communicate with everyone who may be impacted and rely on the assistance of a qualified estate planning attorney.

“Homestead is the trickiest issue we deal with in estate planning and probate,” she says. “You need to be sure you’ve left it correctly, and you note the restrictions on the devise. For instance, if you’re married, you can’t leave a home to anyone but your spouse—even if that spouse doesn’t want it. And if you have minors, you can’t cut them out or force them to move out. It’s very complicated and cumbersome.”

For more information on this area of law, see our overviews of estate planning, wills, trusts, and probate and estate administration.

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