Updated: Oct 12, 2021
This column first appeared in the San Antonio Express News and other Hearst Newspapers on June 8, 2020.
Dear Mr. Premack: I have three daughters. One is closer to me than the others. My youngest has always been here for me and taken care of me, and I want to leave her my house. What I can’t decide is what should happen if she gets in an accident or something. She is divorced with two adult kids, and I’m not as close to them as I am to my other two daughters. Is there a way I can leave the house to her but not to her children, giving it to my other daughters if my youngest were to die before me? – RW
There are several legal approaches you could use to accomplish your goal. The first and most traditional method is to rely on a Last Will and Testament. In the Will, you could state that you leave your house to your youngest daughter, under the terms of a Testamentary Trust inside your Will. She would be allowed to use, enjoy, and occupy the house during her lifetime, after your death, as the beneficiary of the Testamentary Trust.
Your two elder daughters would be named as the secondary beneficiaries of the trust. When your youngest eventually dies, the trust would distribute the house title to your two elder daughters, not to the children of your youngest.
Of course, for the plan to take legal effect when you die, the Will would need to go to probate court. Probate is not a terrible process in Texas if the Will is professionally written, properly signed by you and two witnesses, properly self-proven, properly appoints an Independent Executor and a Trustee, and properly specifies your instructions. This is not a do-it-yourself project, and you’ll need the assistance of an experienced estate planning attorney.
If you want a legal plan that avoids probate court, there are two options: first, an Enhanced Life Estate Deed, and second a Living Trust. Each has its pros and cons.
The Enhanced Life Estate Deed (less formally referred to as a Lady Bird Deed) would be written by your estate planning attorney, signed by you before a notary, and recorded with the county clerk. In the deed, you would specify that you are retaining life estate – the right to use, enjoy, and occupy your home as homestead for the rest of your life. You would specify that when you die, title to the home vests in your youngest. You would specify that you could unilaterally change your mind at any time.
The strengths of this plan are that it avoids probate while passing the house to your youngest and preserving your future options. The weaknesses are that should your youngest die before you, you must take legal action to cancel the deed and issue a new one to your two elder daughters. If you fail to do so, the house could end up with the two grandchildren. Further, if your youngest does outlive you, the house becomes hers without any controls imposed by you, so if she decides not to leave it to her sisters there is nothing you can do.
If you opt for a Living Trust, you get the detailed control allowed in a Will but the Trust (if properly established and funded) avoids going to probate court. Your estate planning attorney would write the Trust according to your instructions, and after you sign the Trust you would also sign a deed conveying ownership of your home to the trustee of the Trust.
The Living Trust would allow you to use, enjoy, and occupy your home as homestead for your lifetime. It could say that when you die, title to the house stays in trust with your youngest daughter able to live in the house. But she never becomes owner of the house. Instead, the Trust specifies that when she dies the house goes to your two eldest daughters – and to be safe you should further specify alternates in case your elder daughters die. This way, you can control who gets the house under a variety of scenarios while avoiding probate court.
Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. View past legal columns or submit free questions on those legal issues via www.Premack.com.