Mary Owens: Estate planning from the heart
Second marriages often require special attention to detail and additional forethought when drafting estate planning documents. Many well-intentioned provisions can backfire when sudden unexpected changes in circumstance occur. Few can be so challenging as allowing a spouse from a new marriage to remain in the home of the decedent owner after the decedent’s death if the rules of occupancy are not clear and constrained.
Without careful planning, the well-intentioned desire of a decedent to provide for the continuing shelter and maintenance of a standard of living for their surviving spouse can create challenging problems for the successor trustee who is responsible for the wellbeing of the property.
Before we begin this discussion, I want to make clear, allowing a surviving spouse of second marriage to continue to live in the home of the deceased spouse’s home after their death is a common practice. It is a good solution for many second marriages for a wide variety of reasons. But the provision that allows the surviving spouse the right to continue to live there must come with a clear set of rules.
The most common requirements of the surviving spouse are the following:
Pay the property taxes timely as they come due.
Pay for the insurance on the home as it comes due.
Insure the home for its replacement cost.
Properly maintain the home, inside and out.
Agree on a plan for replacing major items likes roofs, gutters, siding, appliances, drainage, etc. Make it very clear who is to pay for what.
Limit who may live there. Usually only the surviving spouse of the decedent except for in-home licensed care givers.
The surviving spouse may not lease out the home.
Do each of these provisions sound like a common ground of understanding of occupancy has been reached? The reality is no, the tough issues have not been addressed at all. Let’s discuss all the areas that are so frequently overlooked.
Defining the standard of properly maintaining the home needs detailed clarification, for both the interior and the exterior. If the carpets smell like the kitty litter box, the deck has not been stained for so long that dry rot is occurring, the garage door is damaged from someone backing into it, but it still works, I doubt most trustees would consider that condition of maintenance the standard they were expecting. Does the trust document give the trustee the clarity they need to step in and take control of a home that is deteriorating because of lack of care? Did you give your trustee the detailed authority they need so they can act without having to go to court?
The problem of maintenance also should address mental health issues as well. If a surviving spouse is physically or mentally declining, the circumstances and conditions of their illness must be addressed. Mentally ill people occupying a home alone can endanger a home. If the aging surviving spouse has dementia, can they stay there safely? Will they remember to turn the stove off, or not turn on the microwave for one hour when they wanted one minute? Such lack of awareness can burn houses down. Many insurance companies now track how may times 911 is called to an address that involves a potential fire safety issue. They can come and inspect the house and cancel the insurance with little notice if they find the occupant unable to safely live in the house. Does your trust document give the trustee the power to deal with this situation?
All of us are keenly aware of the dangers of fire. But what do you do if the house burns down and it cannot be rebuilt? The Camp Fire is a clear example. The trustee should have the right not to rebuild if it is financially unfeasible.
If the house burns down because the occupant caused the fire because of carelessness, is the trustee forced to allow the occupant to reoccupy the home? If it was a clear the fire was not caused by the occupant’s careless behavior, then yes, they should. But what if they are smoking in bed all the time and they were not supposed to do that?
What does the trustee do if the cost of fire insurance is so outrageous it becomes unaffordable? Does it allow the trustee to sell the home and replace it with another that is affordable or insurable? What happens if they can’t sell the property and it is uninsurable?
What does a trustee do if the occupant starts to abuse or deal drugs and the neighbors are up in arms about the “strange things going on next door?” Does the trustee have the right to enter the premises and make inspections to insure the house has not turned into a drug den?
Next month we will be discussing the additional provisions that protect the trustee from common problems of life being lived with all its problems, challenges and changes of events. Allowing second marriage surviving spouse to live in a home after the death of their beloved spouse is still a good option for many, but the options need more clarity of intent to address modern day living issues.
Mary Owens, Principal/Branch Manager, RJFS, 426 Sutton Way, Suite 110, Grass Valley, CA 95945, 530-272-7500. Securities offered through Raymond James Financial Services, Inc., Member FINRA/SIPC. Owens Estate and Wealth Strategies Group is not a registered broker/dealer and is independent of Raymond James Financial Services. Investment advisory services offered through Raymond James Financial Services Advisors, Inc. Neither Raymond James Financial Services nor any Raymond James Financial Advisor renders advice on tax, legal or mortgage issues, these matters should be discussed with the appropriate professional. The foregoing information has been obtained from sources considered to be reliable, but we do not guarantee that it is accurate or complete. Any opinions are those of Mary Owens and not necessarily those of Raymond James.
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