Florida Estate Planning Lawyer Blog

We see many problems with how homes are titled. Most are in attempt to avoid probate or make it easier on family members. Unfortunately, many of these cause real problems for family members in the future. Here is one example of something we see regularly.

Imagine this: You’re retired, your only significant asset is your home, you’re very close to your child or children, and you don’t want the cost of creating an estate plan. In such cases, what’s the harm of simply putting your home in the name of your child to avoid probate and then be done with it?

We’ve gotten this question more than once at our office, and we almost always advise against it. There are a number of reasons to keep your home in your own name, the biggest ones are, loss of control, loss of stepped up basis leading to increased income taxes the kids will pay, failure to use gift tax exclusions resulting in huge penalties to the IRS, increased property taxes and your child’s liabilities. These aren’t the only reasons to keep your home in your own name, however. Other reasons include:

Most parents want to love and treat all of their children the same, but when it comes to estate planning, not every child should be treated the same. In fact, insisting on treating all children exactly the same in an estate plan can often lead to disastrous consequences.

Each of your children is unique, and their circumstances may grow increasingly different, especially as they become adults and acquire jobs and extended in-law families. Each child should accordingly be treated as a unique individual.

Here are a few ways that wise parents might consider treating their children differently in an estate plan, but sill equally:

Many parents hope to pass their values onto their children and grandchildren. Often one of the most important values that they hope to pass on are values based on religion and spirituality. In some cases, religious values are so important to a parent that they will even include mention of these values in their estate planning documents. Our firm strongly believes that an estate plan is not just about money, but about leaving a legacy, and we often encourage our clients to include mention of their values–religious or otherwise.

Formalizing a legacy of values is not always as easy as leaving a financial legacy, however; and there is a limit to how far a parent or grandparent can go in dictating religious values to their heirs. Being too restrictive in an estate plan in an effort to pass on religious values–choosing to disinherit children who marry outside the faith, for example–can often create divisions within a family and spark extended, costly legal battles, all while failing to have any true impact on your heirs’ beliefs. In addition, many of these clauses have historically been poorly drafted and violate the public policy of the freedom to marry and are stricken by courts.

One of the most common value-imposing strategies used by parents in estate planning is to require that children marry within a certain faith in order to receive their inheritance. This strategy has worked in some instances, for example, in 2009 the Illinois Supreme Court overturned the decisions of lower courts and unanimously ruled that Max Feinberg, and his wife, Erla, could legally cut off their grandchildren who chose to marry outside of the Jewish religion.

Here are three compelling reasons to make an estate plan. We all know people similar to those portrayed below. While estate taxes and probate are often compelling reasons to create estate plans, sometimes it is the family dynamics that drive the necessity of estate planning.